1. By this writ petition, petitioner, who is member of Bihar Superior Judicial Service, has prayed for quashing of the order dated 17.5.2000 communicated by the Registrar General of this Court vide Memo no. 6130 (Annexure-1) while he was posted as District & Sessions Judge, Nawada informing him that pursuant to the judgment and orders of the Supreme Court dated 24.8.1993 passed in Review Petition No. 249 of 1992 (Writ Petition no. 1022 of 1989—All India Judges Association v. The Union of India), the Court having assessed and evaluated his service, have been pleased not to allow him the benefit of enhancement of retirement age from 58 years to 60 years, and that in view of the aforesaid decision of this Court, he was ceased to be the member of the Judicial Service of the State on completion of the age of 58 years.

2. In short, the case of the petitioner is that he was born on 15.9.1942 and joined the Bihar Judicial Service on 4.4.1974 as Munsif. He was promoted as Additional Sub-Judge on 17.8.1983 He was promoted as Sub-Judge with effect from 23.8.1984 vide High Court's notification no. 130 dated 18.4.1985 and was posted as Chief Judicial Magistrate. The High Court on consideration of the service record promoted him in Senior Selection Grade vide notification No. 154A dated 5.4.1989 with effect from 22.9.1986 and later, on the post of Additional District & Sessions Judge vide notification no. 3040 dated 16.4.1987 on which he was confirmed vide notification no. 294A dated 21.7.1989 with effect from 22.9.1986 It is stated that the petitioner while posted as Additional District & Sessions Judge at Dhanbad, was nominated as member of the Appointment Committee for appointment of Class IV employee and in course of that some differences cropped up between him and the then District & Sessions Judge, who might have carried it and whispered against him. However, later his performance at Dhanbad was evaluated by the Inspecting Judge in 1995, who found his work and conduct quite satisfactory. The High Court again considered the case of the petitioner for confirmation after examining his entire service record and decided to confirm him in service vide notification no. 260A dated 26th May, 1994. Later he was transferred from Dhanbad to Araria, where the Inspecting Judge on inspection made in the year 1998 appreciated his performance and gave his remarks in the inspection note that “On assessment of out-turn and quality of judgment including the performance as a whole this Officer deserves commendation”.

3. The High Court again on examination of his service record promoted him to the post of District & Sessions Judge and posted him in that capacity at Nawada vide notification no. 347A dated 5.9.1998, where he joined on 11.9.1998 The petitioner has stated that there was nothing against him in the entire service record at that time. It is further stated that the High Court after considering the entire service record even in the year 2000 decided to promote him to the Selection Grade in Bihar Superior Judicial Service vide notification no. 108A dated 17.2.2000 with effect from 1.1.1997 Thus, according to the petitioner, there was absolutely nothing adverse against him in the service record even upto February, 2000. He was also promoted to third level of need based post vide notification no. 214A dated 24.5.2000 It is stated that in April, 2000, just one month before the impugned order was communicated, the Inspecting Judge inspected his judgeship at Nawada about which nothing adverse was communicated to him, which suggests that nothing adverse was found against him during the inspection. On the contrary, the Inspecting Judge expressed words of satisfaction and appreciation about his service.

4. It is stated that this Court considered the matter regarding enhancement of retirement age from 58 years to 60 years along with other Judicial Officers including Sri Uday Kant Thakur, Additional District & Sessions Judge, Madhubani, about whom he has stated that he learnt that his service record was not better than him and his integrity has been doubted, yet he has been granted the benefit of enhancement of age of retirement, whereas the said benefit has been denied to him.

5. A counter affidavit has been filed on behalf of High Court (Respondent no. 2), wherein while extracting the quotation from the decision of the Supreme Court in the case of All India Judges Association v. Union of India, reported in (1993) 4 SCC 288, it is stated that all relevant documents and information relating to the petitioner including the past record of service, character roll, quality of judgments, observation of one or other Hon'ble Judges relating to the petitioner were placed before the Evaluation Committee headed by Hon'ble the Chief Justice and the Evaluation Committee after considering his case and others by its decision dated 2.5.2000 recommended not to extend his service from 58 to 60 years after going through the record of service, character roll and other relevant records and subsequently the matter was placed before the Full Court, which in its meeting dated 6.5.2000 ratified the recommendation of the Evaluation Committee. According to the Respondent, the decision of the Evaluation Committee and of the Full Court not to give the benefit of extension of service to the petitioner was in accordance with the principles laid down in the decision of the Supreme Court.

6. As regards, the facts pleaded by the petitioner, it is stated that when his case for promotion to the rank of Sub-Judge was first time considered he was not promoted, but a post was kept reserved for him and subsequently he was promoted to the rank of Sub-Judge in the year 1983 and got his actual position. Petitioner was confirmed in the rank of Sub-Judge with effect from the due date. It is also admitted that petitioner was appointed as Chief Judicial Magistrate and was promoted to the post of Senior Selection Grade in Bihar Judicial Service with effect from 22.9.1986 and confirmed on the said post from that day. It is also admitted that the petitioner was promoted to the cadre of Superior Judicial Service to officiate as Additional District & Sessions Judge in due time. However, it is stated that he was not confirmed when his case for confirmation was considered, but a post was kept reserved for him and subsequently he was confirmed with due date. About the inspection at Dhanbad, it is stated that the Inspecting Judge had recorded adverse minutes against him on 15.12.1995 and the Standing Committee had immediately transferred him on administrative ground, and resolved to withdraw all judicial records from him forthwith. It is also stated that subsequently the Standing Committee on 23.3.1996 transferred him to Araria and kept him under watch for six months under Inspecting Judge. It is admitted that on consideration of minutes of Inspecting Judge, the Standing Committee at its meeting dated 3.1.1997 had been pleased to resolve that no further action need be taken against him and the matter was dropped. It is further stated that the petitioner was further superseded in the matter of appointment as District & Sessions Judge and also in the matter of promotion in the Selection Grade of Bihar Superior Judicial Service, and was only given promotion to third level need based post.

7. In reply affidavit, the petitioner has stated that the appointment of the petitioner as District & Sessions Judge was delayed for some time without any reason as there was no adverse communication of performance of his judicial activities and that he was posted as District & Sessions Judge on 5.9.1998 at Nawada on the same material as stood prior when his posting as District & Sessions Judge was refused. It is contended that the petitioner retained his position in the gradation list of the cadre while being promoted to the third level need based post with effect from 20th August, 1986 and it would, thus, be wrong to say that the petitioner was superseded in the matter of appointment to the District & Sessions Judge and also in the matter of promotion in the Selection Grade of Bihar Superior Judicial Service. It has further been stated by him that at no point of time any adverse remarks has been communicated to him and he was promoted in due time. So far the posting as District & Sessions Judge is concerned, it was delayed without any rhyme and reason.

8. In the supplementary counter affidavit filed on behalf of Respondent no. 2, it is asserted that neither the Evaluation Committee nor the Full Court has adopted different standard while evaluating the service records of the petitioner vis-a-vis Sri Uday Kant Thakur. It is also stated that the benefit of extension of service upto 60 years is not automatic, rather it is done on the recommendation of the Evaluation Committee and that the scope of judicial review is very limited particularly when the decision making process has not been challenged. In 2nd supplementary counter affidavit filed on behalf of Respondent no. 2 to which a comparative chart with respect to confidential remarks recorded in the case of the petitioner and Sri Udai Kant Thakur, Additional District & Sessions Judge has been annexed as Annexure-A and further yearwise comparative chart showing confidential remarks recorded by Inspecting Judge against the petitioner and Sri Thakur prepared for the years for which it is available has been annexed as Annexure-B. It is stated that the case of the petitioner and Sri Thakur are not comparable specially in view of the fact that the petitioner was functioning as District & Sessions Judge while Sri Thakur is only Additional District Judge.

9. A counter affidavit has also been filed on behalf of Secretary, Personnel and Administrative Reforms, Government of Bihar (Respondent no. 3), in which it is simply stated that this writ application relates entirely to Respondent no. 2 and Respondent no. 3 has no comments to offer in the case.

10. In the supplementary affidavit filed on behalf of the petitioner on 22nd November, 2000, contention has been raised that the Governor of the State is the Appointing Authority of the Judicial Officers and the High Court is Controlling Authority only. It is stated that the order terminating the appointment of a member of service otherwise than upon his reaching the age of superannuation is to be passed by the Governor on the recommendation of the High Court because the High Court is not the authority for appointing, removing, reducing the rank or terminating the service. This contention has been made on the basis of the observation of the Apex Court in the case of All India Judges' Association v. Union of India wherein the Apex Court directed that the retirement age of the members of Subordinate Judiciary in India should be 60 years, and the High Court should undertake and complete the exercise, in case 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. It is, thus, contended that as per the procedure the High Court was to recommend the case of compulsory retirement and it was the Governor to pass order for compulsory retirement. Further, in regard to the remarks of the Inspecting Judge of Dhanbad, petitioner has stated that he in the capacity of Special Judge passed orders on the dates — “18.10.1995, 2.11.1995, 4.11.1995, 6.11.1995, 7.11.1995, 10.11.1995, 16.11.1995, 5.12.1995, 11.12.1995, 12.12.1995, 15.12.1995, 8.11.1995 and 19.12.1995” He has not passed order on any other date in the aforesaid case. In support of this he has brought photostat copy of the certified copy of the entire order sheet as Annexure-7.

11. The impugned communication has been challenged by the petitioner mainly on the grounds that all promotions and confirmations granted to him were in time. It is stated that in view of the decision of the Supreme Court that the retirement age of Judicial Officers stood increased to 60 years and before attaining the age of retirement, petitioner could not be made to retire on attaining the age of 58 years without following the procedure applicable for compulsory retirement and that the petitioner holds civil post under the State of Bihar and the jurisdiction of the High Court is only advisory and the order of retirement can be passed only by the Governor of Bihar. As the State of Bihar and Governor of Bihar has not passed any order of retirement, petitioner cannot be made to retire by the High Court acting on its own. Lastly, he has also challenged the impugned decision/order as being arbitrary, based on no material and the High Court adopting two different standards in the matter of grant of benefit of extension in service.

12. It has been contended that in any view of the matter, it is high time that in order to maintain consistency in the matter of consideration of cases for grant of benefit of extension in the age of superannuation of Judicial Officers some norms should be laid down in order to avoid any heart-burning and/or scope of arbitrariness in taking such decision by the Evaluation Committee and/or the Full Court. It has also been contended that the Government should also amend Rule to enhance the age of superannuation to 60 years in the light of the directive of the Apex Court.

13. Much arguments have been advanced by the learned counsel for the petitioner as well as learned counsel for the Respondent on the question, as to whether the retirement age of Judicial Officers stands increased to 60 years and as to whether before attaining such age of retirement the retirement of the petitioner at the age of 58 years without following the procedure applicable in the case of compulsory retirement is legally justified and tenable and also on the question that whether petitioner holds civil post under the State of Bihar and the Governor of Bihar alone is competent to pass order of his retirement, which having not been done, the petitioner cannot be made to retire by the High Court acting on its own. We do not consider the necessity of going into the details of the arguments advanced by the learned counsel for the petitioner as it is no more res-integra in view of the recent decision of the Apex Court in the case of Bishwanath Prasad Singh v. State of Bihar, Writ Petition (Civil) No. 419 of 2000 disposed of on 15th December, 2000. The Apex Court in the said case, while summing up the conclusion on the said aspect, held as follows:

“1. Direction with regard to the enhancement of superannuation age of judicial officers given in All India Judges' Association v. Union of India (1993) 4 SCC 288 does not result in automatic enhancement of the age of superannuation. By force of the judgment a judicial officer does not acquire a right to continue in service upto the extended age of 60 years. It is only a benefit conferred on the judicial officers subject to an evaluation as to their continued utility to the judicial system to be carried out by the respective High Courts before attaining the age of 58 years and formation of an opinion as to their potential for their continued useful service. Else the judicial officers retire at the superannuation age appointed in the service rules governing conditions of services of the judicial officers.

2. The direction given in 1993 case is by way of ad hoc arrangement so as to operate in the interregnum, commencing the date of judgment and until an appropriate amendment is made in the service rules by the State Government. Once the service rules governing superannuation age have been amended, the direction ceases to operate.

3. The High Court may, before or after the normal age of superannuation, compulsorily retire a judicial officer subject to formation of an opinion that compulsory retirement in public interest was needed. The decision to compulsorily retire must be in accordance with relevant service rules independent of the exercise for evaluation of judicial officer made pursuant to 1993 case. Recommendation for compulsory retirement shall have to be sent to State Government which would pass and deliver the necessary orders.

4. If the High Court finds a judicial officer not entitled to the benefit of extension in superannuation age he would retire at the age of superannuation appointed by the service rules. No specific order or communication in that regard is called for either by the High Court or by the Governor of the State. Such retirement is not ‘compulsory retirement’ in the sense of its being by way of penalty in disciplinary proceedings or even by way of ‘compulsory retirement in public interest’. No right of the judicial officer is taken away. Where the High Court may choose to make any communication in this regard, it would be better advised not to use therein the expression ‘compulsory retirement’. It creates confusion. It would suffice to communicate, if at all, that the Officer concerned, having been found not fit for being given the benefit of extended age of superannuation, would stand retired at the normal age or date of superannuation.”

14. An argument has also been advanced on behalf of the petitioner that the High Court has committed error in constituting separate Evaluation Committee when there is already a Committee known as Standing Committee under the Rules to deal with the cases for compulsory retirement of any Judicial Officer. It is contended that constitution of separate Evaluation Committee is not contemplated either by the judgment of the Apex Court or under the Rules, which empowers only the Standing Committee to recommend to the State Government for compulsory retirement of any Judicial Officer of any rank.

15. In the first case of All India Judges' Association the Apex Court directed that the retirement age of Judicial Officers be raised to 60 years and appropriate steps be taken by 31st December, 1992. However, in the second case of All India Judges' Association (reported in (1993) 4 SCC 288 : A.I.R 1993 Supreme Court 2493) while explaining the main judgment under review modified the direction to the extent that the benefit of the increase of the retirement age to 60 years shall not be available automatically to all Judicial Officers irrespective to their past records of service and evidence of their continued utility to the judicial system. It was further directed that the benefit will be available to those who in the opinion of the respective High Courts, have a potential for continued useful service, and is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. It was also directed that the potential for continued utility shall be assessed and evaluated by appropriate committee of Judges of the High Court constituted and headed by the Chief Justice 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. While summing up in paragraph 10 their Lordships modified the direction with regard to enhancement of superannuation age that while the superannuation age of every subordinate judicial officer shall stand extended up to 60 years, the respective High Courts should, as stated above, assess and evaluate the record of the judicial officer for his continued utility well within 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. Under sub-rule (x) of Rule 3 of Chapter I of the General Rules of the High Court, the Standing Committee have been empowered to make recommendation to the State Government for compulsory retirement of any judicial officer of any rank.

16. We, therefore, quite see force in the argument of the learned counsel for the petitioner that in view of the aforementioned direction when there is already appropriate Committee of Judges headed by the Chief Justice constituted as per the Rules of the High Court for the purpose of consideration of case for compulsory retirement then there may not be any need for constitution of a separate committee by the Chief Justice for which the Rule does not empower him. There may also be some force in the argument of the learned counsel that when there is already appropriate Committee in existence then constitution of another Committee may give wrong signal, as the Apex Court has directed that such exercise of power should be undertaken and completed after following the procedure of compulsory retirement under the service rules applicable to the judicial officers. But, when the Apex Court has not prohibited the constitution of Evaluation Committee and rather directed that the potential for continued utility shall be assessed and evaluated by the appropriate committee of the Judges of the High Court constituted and headed by the Chief Justice then the decision of the Evaluation Committee in the present case affirmed by the Full Court, in my opinion, cannot be said to be illegal or irregular on that score moreso, when in the recent decision of the Apex Court in the case of Bishwanath Prasad Singh (supra), the Apex Court while explaining its earlier decision has held that such retirement is not compulsory retirement in the sense of its being by way of penalty in disciplinary proceedings or even by way of compulsory retirement in public interest, and that no right of the judicial officer is taken away.

17. It has been submitted by the learned counsel for the petitioner that the impugned decision/order is based on no material and the High Court has adopted two different standards in assessing and evaluating the potentiality for continued utility of the petitioner vis-a-vis Sri Thakur in service. According to him, there was nothing against the petitioner in his entire service record except that there was delay in the matter of appointment of the petitioner as District & Sessions Judge and in the matter of promotion in the selection grade post of Bihar Superior Judicial Service, but the facts would show that it was not on account of any fault of the petitioner.

18. Mr. Dutta, learned Standing Counsel appearing for the High Court, however, contended that in view of the law settled in the case of Anirudh Prasad Choudhary v. State of Bihar (Special Bench), reported in 1996 (1) PLJR 633, the scope of judicial review is very narrow and it is not to be equated with the power of an appellate Court. It is submitted that the Special Bench has held that this Court in exercise of the discretionary power under Articles 226 & 227 of the Constitution cannot substitute its own decision for that of the Full Court and that the judicial review is not permissible against the decision but the decision making process only. He also referred to the decision of the Supreme Court in the case of Harpal Singh Chauhan v. State of U.P, reported in (1993) 3 SCC 552 : A.I.R 1993 Supreme Court 2436 to explain as to what extent the Court can examine whether there was any infirmity in decision making process, wherein the Apex Court held that the Court cannot substitute its own judgment over the final decision taken in respect of selection of persons.

19. We are unable to accept the submission of the learned Standing Counsel appearing for the High Court. It is true that in the case of Anirudh Prasad Choudhary (supra) Special Bench held that this Court in exercise of the discretionary power under Articles 226 & 227 of the Constitution cannot substitute its own decision for that of the Full Court and that the judicial review is not permissible against the decision but the decision making process only, but, even recently the Apex Court in the case of Bishwanath Prasad Singh (supra) has held that so long as the opinion forming basis of the order for compulsory retirement in public interest is formed bonafide, the opinion cannot be ordinarily interfered with by a judicial forum, and that such an order may be subjected to judicial review on very limited grounds such as the order being malafide, based on no material or on collateral grounds or having been passed by an authority not competent to do so (underlining is by us). Thus, with due respect, we are unable to accept the submission of Mr. Dutta that the Special Bench decision will have binding effect on the face of the decision of the Supreme Court in the case of Bishwanath Prasad Singh (supra). In the said case, it is true that the Apex Court held that the opinion formed by the High Court cannot be ordinarily interfered with by a judicial forum, but, at the same time, made it clear that such an order may be subjected to judicial review on the grounds, such as, the order being malafide based on no material or on collateral grounds or having been passed by an authority not competent to do so.

20. This Court finds that the appointment of the petitioner as District & Sessions Judge was delayed for some time without any reason as there was no adverse communication to the petitioner of his performance of judicial activities and eventually he was appointed to such post vide notification no. 347 A dated 5.9.1998 and posted as District & Sessions Judge at Nawada on the same material as it stood prior to his said posting when he was denied of it at due time. It is, thus, apparent that the petitioner was earlier denied appointment to the post of District Judge without any material as even the counter affidavit does not disclose any material. With respect to promotion in the selection grade post of Bihar Superior Judicial Service, there was no supersession and he retained his post in the gradation list in the cadre while he was promoted in the third level of need based post with effect from 3rd August, 1986. It would, therefore, be wrong to say that the alleged supersession of the petitioner in the matter of appointment of the District & Sessions Judge or in the matter of promotion in the selection grade post of Bihar Superior Judicial Service were on account of any adverse report against him. Moreover, it is not in dispute that at no point of time any adverse report was ever communicated to the petitioner and the facts stated in the counter affidavit itself and the details of his service record, contained in Annexure-A & B would demonstrate that all promotions to the petitioner were made in due time, and besides that there was nothing against him. The service record of the petitioner as shown in Annexures-A & B is as under:

1974-1975 Hard working and intelligent. Orders are quite good. Relations with Bar Cordial.

1975-1976 Work average. Personality average. “Criminal outturn found thrice inadequate during the year 1976”

1976-1977 As Munsif he shirked work. His outturn was very low. Was found late in coming to Court. His relation with Bar was good.

1977-1978 Intelligent and maintains good relations with the Bar.

1978-1979 An officer of average merit.

1980-1981 A capable Officer. He takes interest in administration.

1981-1982 He has improved much. His disposal is also good. His relationship with bar is cordial. He has effective control over his office.

1982-1983 A sober and sincere Officer. He has maintained cordial relation with the bar. His judgments are well discussed. He has been punctual in attendance in Court. His outturn on an average can be said to be satisfactory.

1983-1984 An officer of average merit. He enjoyed good reputation at the Bar.

1984-1985 Knowledge of law and procedure satisfactory. An average efficient Officer. Nothing against his honesty and impartiality. Nothing known against his integrity. His relationship with the members of the Bar, litigant, public and staff is good.

1986-1987 Possessed good knowledge of law and procedure. He is industrious and prompt in disposal of cases. Exercise very good, control and supervision as C.J.M as also on the subordinate staff as Judge I/C Nazarat and Accounts. He is an efficient Officer. He has maintained a very good reputation for honesty and impartiality. He is fit to exercise power of an Addl. District and Sessions Judge on promotion. Defects, if any—No. A good smart and efficient Officer with pleasing manners.

1987-1988 B

1988-1989 B+

1989-1990 B (Satisfactory)

1990-1991 B (Satisfactory)

1991-1992 B (Satisfactory)

1992-1993 B (Satisfactory)

1993-1994 B (Satisfactory)

1995-1996 B+

1997-1998 B+

Confidential remarks recorded by Hon'ble Inspecting Judge:

1984-1985

Knowledge of law and procedure — Satisfactory

Industrious and prompt in disposal of cases — Yes

Quality of Judgments and orders — Yes, ‘A’ very good

Is he an efficient judicial officer. — Yes

Has he maintained judicial reputation for honesty and impartiality. — Yes

Attitude towards his superiors, subordinates and colleagues — Satisfactory

Behaviour towards members of the Bar and the Public — Satisfactory

Net result — He is a very good Judicial Officer. Category—‘A’-Very good.

— Hon'ble Nazir Ahmad.

1989-1990

Knowledge of law and procedure — Fair

Industrious and prompt in the disposal of cases. — Yes, but very dull.

Quality of judgments and orders — Average

Is he an efficient Judicial Officer? — Average (but always looking vacant and not at all prepared)

Has he maintained judicial reputation for honesty and impartiality? — Yes

Attitude towards his superiors, Subordinates and Colleagues — Good

Behaviour towards members of the Bar and the Public — Good

Remarks about administrative capability. — Not very impressive Net result — “Average (B)”

— Hon'ble S.K Jha.

Knowledge of law and procedure — Fair

Industrious and prompt in the disposal of cases — Fair

Quality of judgments and orders — Yes, B+

Is he an efficient judicial officer? — Satisfactory

Has he maintained judicial reputation for honesty and impartiality? — Nothing heard about him.

Attitude towards his superiors, subordinates and colleagues — Satisfactory

Behaviour towards members of the Bar and public. — Cordial

Net result — “On the whole performance-Satisfactory

—Hon'ble L.P.N Sahdeo.

1995-1996 1997-1998 2000-2001 Knowledge of law and procedure— Quite good — Good — Good Industrious and prompt in the disposal of cases — Yes and quite satisfactory Yes — Yes Quality of judgments and order — B+ — B+ Good — B+ Is he an efficient judicial officer? — Average — Yes — Yes Has he maintained judicial reputation for honesty and impartiality? — Yes— No complaint — Yes Attitude towards his superiors subordinates and colleagues— Cordial — Good — Good Behaviour towards members of the Bar and public.— Courteous — Cordial — Good Remarks about administrative capability-Net result — Average — X — He took keen interest for the completion of new Civil Court Building. He was capable of solving many problems of the judgeship and exercised effective control over his subordinates Net result — —“/Good judicial Officer” B+ Good — Hon'ble Chy. S.N Mishra. — “B+” “Of late I have heard quite disturbing reports about the integrity of Sri S.D Singh, A.D.J, Dhanbad. I had a talk with the District Judge there and he also expressed his dissatisfaction about the working of Sri Singh in the discharge of his duties as a Judicial Officer. Recently, I heard about a criminal case lodged by C.B.I (in which one Sri Modi and Sri Gandhi figure as accused) where the conduct of Sri Singh is not beyond reproach.” —Hon'ble A.K Ganguly, J. 15.12.95 Hon'ble A.K Sinha

21. It is submitted by Mr. Dutta that the petitioner is an Officer who besides being superseded twice has also earned adverse remarks by the Hon'ble Inspecting Judge on 15.12.95, which is sufficient for refusing the extension. In this regard he referred to the remark of the Inspecting Judge, Hon'ble A.K Ganguly, J., which is as follows:

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

22. According to the learned Standing Counsel, the impugned decision is based on the assessment and evaluation of the entire service record of the petitioner for testing his continued utility for grant of benefit of extended superannuation age from 58 to 60 years. In reply, learned counsel appearing for the petitioner submitted that the remark of the Inspecting Judge, Hon'ble A.K Ganguly, J. is either based on the report of the District Judge with whom differences had cropped up in the matter of appointment of Class IV employees or on the criminal case lodged by the C.B.I in which one Sri Modi and Sri Gandhi figured as accused, in regard to which it has been found by the Hon'ble Inspecting Judge that the conduct of the petitioner is not beyond reproach. It is submitted that the entire order sheet of C.B.I case, while petitioner was in seisin of it, photo copy of which has been annexed to the supplementary affidavit filed on behalf of the petitioner would show that on application filed by I.O for issue of search warrant of the residential premises of Ramesh Gandhi, Rajesh Gandhi and the office premises of Continental Transport and Construction Corporation, the petitioner allowed it and there is nothing contained therein creating even doubt about the conduct of the petitioner. The Standing Committee of the High Court also realising the whole thing finally exonerated him on 3.1.1997 when it was resolved that no further action need be taken against him and the matter was dropped.

23. This Court finds substance in the said submission of the learned counsel for the petitioner. The number of the said C.B.I case is R.C 20A/95(D) of Dhanbad, in which the petitioner in the capacity of Special Judge passed orders only on 18.10.1995, 2.11.1995, 4.11.1995, 6.11.1995, 7.11.1995, 10.11.1995, 16.11.1995, 6.12.1995, 11.12.1995, 12.12.1995, 15.12.1995, 8.11.1995 and 19.12.95 In the said case I.O had filed a petition for issue of search warrant of the residential premises of Ramesh Gandhi, Rajesh Gandhi and the office premises of Continental Transport and Construction Corporation, which was allowed by this petitioner. But, later when he went on leave a petition for bail was filed on their behalf, which was dealt in the order dated 19.10.1995 by another Special Judge, who was incharge. The prayer for bail was rejected by the Special Judge Incharge, but, however, considering the ailment of the accused persons, he directed to keep the said accused persons in separate cabin in Sadar Hospital Dhanbad, and further, that they will be removed from Sadar Hospital to Jail only on the permission of the Superintendent, Sadar Jail, Dhanbad. In fact, the petitioner vide order dated 7.11.1995 on the report of the Doctor that both the accused persons required hospitalisation for ten days more for observation and management simply allowed them to remain in the Hospital for ten days i.e upto 17.11.1995 and the Superintendent, P.M.C.H, Dhanbad was directed to submit report about the condition of the accused persons on 17.11.1995 Later, the Superintendent, P.M.C.H, Dhanbad had written that the treating physician has requested him to constitute a Medical Board and a Medical Board has been constituted for their thorough investigation and on this request of the Superintendent, P.M.C.H, Dhanbad, time was allowed till 23.11.1995 for submitting a report regarding their present condition, by which date the Superintendent was directed to comply the previous order without fail. Thereafter, the petitioner again went on leave, and all subsequent orders have been passed by the Special Judge Incharge including the order dated 30th November, 1995 in which the Jail Superintendent, Dhanbad was directed to make necessary arrangement for sending the said accused to Birla Heart Institute, Calcutta with adequate Police guard for treatment and submission of the report of the investigation and treatment of the accused persons to the Court within ten days after admission of the accused in Birla Heart Institute, Calcutta. Later, on 30th November, 1995 itself on the intimation received from the Jail Superintendent, Special Judge Incharge directed for production of accused persons awaiting final form. Against the said order, the State filed Cr. Misc. No. 4635 of 1995 (R) before Ranchi Bench of the High Court and later the District & Sessions Judge, Dhanbad vide letter no. 20702 dated 1.12.1995 intimated the Court that he had received telephonic message from the Joint Registrar of Ranchi Bench informing him that the High Court has been pleased to stay operation of the order dated 30th November, 1995. On 1st December, 1995, the attending Doctor had discharged the accused persons. The Special Judge Incharge, C.B.I noticed in his order that the attending Doctor had discharged the accused persons on 25.11.1995 and in view of the discharge of both the accused persons he directed that they should be transferred to Sadar Jail, Dhanbad and the Jail Doctor would give medical treatment, if required. On 2.12.1995 a petition was filed on behalf of the accused persons for keeping them in P.M.C.H, Dhanbad till 7.12.1995 on which date Ranchi Bench of this Court had fixed the date of hearing in Cr. Misc. No. 4635 of 1995(R). The Special Judge Incharge on the submission of Special P.P, C.B.I directed that there is no necessity for keeping the accused persons in P.M.C.H in view of the stay order passed by this Court on 1.12.1995 The petitioner on his return on 6.12.1995 received the order of Ranchi Bench of the High Court dismissing the said Cr. Misc. application as withdrawn, about which he noted in his order dated 6.12.1995 Thereafter the accused persons were forwarded in jail custody and there is nothing in the entire order sheet of the case to show that the petitioner had passed any such order, which would even indicate about any interest being shown by him, in the accused persons. However, thereafter on the basis of the said report dated 15.12.1995 of the Hon'ble Inspecting Judge, the Standing Committee at its meeting dated 19.12.1995 considered the proposal of immediate transfer of the petitioner on administrative ground and resolved to withdraw all judicial records from him forthwith and the petitioner was accordingly transferred to Araria, and was kept under watch for six months. Later, the Standing Committee realising the whole thing on 3.1.1997 resolved that no further action need be taken against him and the matter was dropped. The facts aforesaid will indicate that the Inspecting Judge, Hon'ble A.K Ganguli, J had made the noted remark merely on some report made to him by the District Judge and Justice Ganguli had no occasion to scrutinise the entire records of the C.B.I case. It appears that subsequently the Standing Committee on being satisfied resolved that no action need be taken against the petitioner.

24. In our opinion, denial of the benefit of extension or taking action in the nature of punishment on the note of the Hon'ble Inspecting Judge based either on merely information or whisper will not be justified and more so as it will be violative of the principles of natural justice. In the case of The Board of High School and Intermediate Education, U.P v. Kumari Chitra Srivastava, reported in (1970) 1 SCC 121 : A.I.R 1970 Supreme Court 1039, the Apex Court has held:

“Principles of natural justice are to some minds burdensome but this price a small price indeed, has to be paid if we desire a society governed by the rule of law.”

25. Moreover, even recently, the Apex Court has disapproved of making observation against the member of subordinate judiciary in judicial orders as it would amount to denial of reasonable opportunity. It has rightly been submitted that it may shake the confidence and independence of the members of the subordinate judiciary, who have to act in a position where one party is bound to lose and on that account he may be carrying grudge against him. We are of the view that before taking any action on such note of the Hon'ble Inspecting Judge, there must be a cross-checking as it involves the career of a judicial officer, who has to act under lot of constraints.

26. Moreover, in our opinion, the Evaluation Committee of the High Court cannot be held to be legally justified in taking into consideration even of the so-called delay in posting of the petitioner as District & Sessions Judge and confirmation in the selection grade post of Bihar Superior Judicial Service or any of his other past record for the purpose of evaluation of his potentiality, when there is nothing in his present conduct casting any doubt on the wisdom of the promotion, confirmation, so much so that even in the last inspection note of the Hon'ble Inspecting Judge, besides finding him good, efficient, honest and impartial, his performance as District Judge has also been highly commended, in view of the law settled by the Apex Court in the case of D. Ramaswami v. State of Tamil Nadu, reported in 1982 (1) All India Services Law Journal 194. In the said case the Apex Court held as follows:

“In the face of the promotion of the appellant just a few months earlier and nothing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service. The learned Counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to his promotion. We do not say that the previous history of a Government servant should be completely ignored, once he is promoted. Sometimes, past events may help to assess present conduct. But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past.”

27. Mr. Dutta, however, submitted that the said decision is of no avail in the case of evaluation of potentiality for the purpose of grant of benefit of extension in view of the directive of the Apex Court in the case of All India Judges' Association (supra). We are unable to accept the said submission. In the case of All India Judges' Association the Apex Court has not held that while considering the potentiality the settled laws would not apply and are to be ignored. In our opinion, there cannot be even an iota of doubt that the laws settled by the Apex Court are to be followed and applied in all cases whereever it is relevant. We are quite conscious of the observation of the Apex Court in the second All India Judges' Association case, according to which, evaluation is to be made on the basis of judicial Officer's past record of service, character rolls, quality of judgments and other relevant matters. Past record of service would not include such past record of service, which according to the law settled by the Apex Court in the case of The Regional Manager v. Pawan Kumar Dubey, reported in (1976) 3 SCC 334 : A.I.R 1976 Supreme Court 1766, either stand washed off or in view of the law settled by the Apex Court in the case of D. Ramaswami (supra) cannot be taken into account when there is nothing in the present conduct casting any doubt on the wisdom of the promotion. The Apex Court in the case of The Regional Manager v. Pawan Kumar Dubey (supra) held that the adverse entries must be deemed to have been washed off by the orders of promotion on ad hoc/officiating basis. It is not in dispute that the petitioner was never communicated with any adverse remark which could have been validly taken into consideration against him. Moreover, the said adverse remark lost its significance after the petitioner was promoted as District & Sessions Judge, Nawada on 5.9.1998 In the case of Brij Mohan Singh Chopra v. State Of Punjab., reported in (1987) 2 SCC 188 : A.I.R 1987 Supreme Court 948, the Apex Court held that the adverse entries lose their significance after promotion of the employee.

28. Learned counsel for the High Court has also submitted that each case has to be assessed and evaluated on its own merit and are not comparable particularly in the instant case in which there is difference in the scope and powers of the District Judge, on which post the petitioner was posted when he has been denied the benefit of extension upto 60 years of age and Additional District Judge, which is held by Sri Thakur. According to him, more rigorous test is to be applied and greater amount of suitability is to be considered in the case of the District Judge. It has also been submitted that in any view of the matter, one wrong cannot justify the claim of the petitioner on that basis and he cannot derive the benefit out of it. In support of this he referred to the decision of the Apex Court in the case of Gursharan Singh v. New Delhi Municipal Committee, reported in (1996) 2 SCC 459 : A.I.R 1996 Supreme Court 1175, wherein the Apex Court held that the guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. According to the Apex Court to put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, the others cannot invoke the jurisdiction of the High Court or the Supreme Court, that the same irregularity or illegality be committed by the State or an authority which can be held to be a State within the meaning of Article 12 of the Constitution. There cannot be any doubt about the proposition that the guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. In other words, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, the others cannot invoke the jurisdiction of the High Court or of the Supreme Court for perpetuating the same by the State or an authority. However, the said principle has no application to the present case as there is no question of any illegality or irregularity being committed in favour of Shri Thakur which the petitioner wants to enforce. In fact, the question is as to whether while dealing with the case for grant of benefit of extension upto 60 years of age the High Court can adopt two different standards. The entire service record of the petitioner vis-a-vis Sri Thakur who has been granted extension brought on the record of this case by the High Court by way of chart (Annexures-A & B) clearly demonstrate that there is no material much less valid material against the petitioner to deny him with the benefit of extension, whereas on the other hand, the service records of Sri Thakur demonstrate that his integrity has been doubted and carries much inferior service record in the matter of character roll, quality of judgments and other relevant matters.

29. The service record of Sri Thakur, as brought by the High Court in the counter affidavit, is as under:

1975-1976 Quality of work satisfactory and quantity capable of improvement. Relation with bar satisfactory.

1976-1977 Quality and quantity of work satisfactory. Relation with Bar satisfactory.

1977-1978 Punctual. Average Officer, Disposal average. Relation with Bar satisfactory.

1978-1979 Quality of works satisfactory. Relation with Bar satisfactory.

1979-1980 Quality of work satisfactory. Relation with bar healthy.

1980-1981 Quality of work satisfactory. Relation with the Bar satisfactory.

1981-1982 He is an intelligent and efficient officer having unimpeachable integrity and holding cordial relationship with all concerned. Judicial work satisfactory.

1982-1983 Humble and intelligent. Possesses fair knowledge of law.

1983-1984 He seems to be a mediocre Judicial Officer of confused mind. While hearing appeal (M.T.A 40/81) against his judgment, I found that he had granted not only such relief which could not be legally granted but also such a relief as the plaintiff had not even asked for. He is submissive and well mannered. He did not carry very good image and was reported to be approachable. Also lacked proper control over proceedings in his Court and was found to have heard arguments for several dates in some cases.

1984-1985 Possessed knowledge of law and procedure. He is industrious. Ordinarily efficient. He has maintained a reputation for honesty and impartiality. His work conduct and judicial reputation on the whole are satisfactory.

1986-1987 Knowledge of law and procedure is satisfactory. He is industrious and prompt in the disposal of cases. He is an efficient officer. He has maintained a reputation for honesty and impartiality. No apparent defect has come to light. A well behaved Officer. Having good relation with the Bar.

1987-1988 He has knowledge of law and procedure. He is industrious and prompt in the disposal of cases. He is an efficient Officer. He has maintained a reputation for honesty and impartiality during the period. Defects, if any Nothing to my knowledge. May be a good Officer.

1988-1989 He has average knowledge of law and procedure. He has to work hard in disposing cases. This Officer though simple and sober, has to exert himself more to come up to the standard of an efficient officer. He has maintained a good reputation for honesty and impartiality.

His relationship with the Bar is good. He has to work more. A well behave officer.

1990-1991 Good knowledge of law and procedure. He is industrious and prompt in disposal of cases. His supervision of the distribution of business among and his control over the subordinate courts good. He is an efficient Officer. He has maintained a reputation for honesty and impartiality.

He is well behaved and disciplined. He is intelligent and hard working. His relation with the Members of the Bar and his colleagues is good. His performance is very good.

1991-1992 Satisfactory knowledge of law and procedure. He is industrious and prompt in disposal of cases. His supervision of the distribution of the business among and his control over the subordinate courts good. He is an efficient officer. He has maintained a reputation for honesty and impartiality.

He is industrious and hard working. He is well behaved and disciplined. Has good relation with the members of the Bar and his colleagues. His performance is good.

Knowledge of law and procedure satisfactory. He is industrious.

He is an average officer. His reputation was not good. There has been several complaints against him by the Bar and litigant public of his integrity.

An officer of average merit and intelligence. Possess low integrity.

He has average knowledge of law and procedure. He is industrious, an efficient Officer and prompt in the disposal of cases. His supervision of the distribution of business among and his control over the subordinate Courts good. There is nothing against him about his honesty and impartiality. No defect.

Diligent, sincere and submissive. On the whole his performance is satisfactory. His relation with colleagues and Bar good.

1992-1993 Average knowledge of law and procedure. He is industrious and prompt in the disposal of cases. His supervision of the distribution of business among and his control over the subordinate Courts-good. An efficient Officer, there is nothing against him about his honesty and impartiality. Defects-No.

Diligent, sincere and submissive. On the whole his performance is satisfactory. His relation with colleagues and Bar good.

1993-1994 Knowledge of law and procedure good. Is he industrious and prompt in the disposal of cases?—Yes. Is his supervision of the distribution of business among and his control over the subordinate courts good?—Yes. Is he an efficient Officer?—Yes. Yes, he has maintained a reputation for honesty and impartiality. Defects—No.

Good. He is not only honest and impartial but also industrious and intelligent. He maintains good relation with colleagues and the Bar. Both quality quantity of his judgments and orders are very good.

1994-1995 Knowledge of law and procedure-good. Is he industrious and prompt in the disposal of case?—Yes. Is his supervision of the distribution of business among, and his control over the Subordinate Courts good? —Yes. Is he an efficient Officer? Yes. Yes, he has maintained a reputation for honesty and impartiality. Defects-No.

Good. He is not only honest and impartial but also industrious and intelligent. He maintains good relation with colleagues and the Bar. Both quality quantity of his judgments and orders are very good.

1995-1996 Knowledge of law and procedure—average. Is he industrious and prompt in the disposal of cases?— Yes. Is his supervision of the distribution of business among and his control over the Subordinate Courts-good— Yes. Is he an efficient Officer—Yes. Has he maintained a reputation for honesty and impartiality—Yes. Is he fit for the exercise of any enhanced power—Yes, A.D.J Defects—No.

Soft spoken, well behaved, industrious. Has maintained cordial relationship with colleagues and members of Bar.

1996-1997 Knowledge of law and procedure—Fair. Is he industrious and prompt in the disposal of cases— earned legal remarks in civil side during 1st quarter, 1997 though work on criminal side was satisfactory. An officer of average efficiency. In Dhurki P.S Case No. 26/96 Principal accused person facing accusation of indulging in smuggling of Kendu Leaves causing loss of Rs. 10,00,000/- to the State exchequer on their surrender in Court were admitted to bail by him notwithstanding refusal of anticipatory bail by Hon'ble Court and rumour was about accused being admitted to bail on acceptance of illegal gratification by the Preceding Officer. In G.R.P.S Case No. 229/96 even though accused C.P Sinha lost anticipatory bail well before the Sessions Judge and the Hon'ble Court on accusation of forging credit entry in account of housewife and family members and subsequently withdrawing the amount by virtue of his office, was admitted to bail by him. In G.R Case No. 121/97 accused Upendra Mahto facing accusation of possessing arms and ammunition was admitted to bail by him quoting wrong presidence of the Sessions Court with observation that he was minor, notwithstanding that at the time of remand his age was assessed to be about 20 years by none else but himself. In G.R Case No. 225/96 accused Gauri Shankar Mishra facing accusation of misappropriation of Rs. 21,000/- from informant and there being evidence of execution of deed of sale for S.T.D booth, was admitted to bail on illogical and unconvincing grounds.

In G.R Case no. 555/96, G.R Case No. 639/96, G.R 558/96 and G.R 563/96 accused facing accusation of committing theft of electric energy of considerable value were admitted to bail on their surrender in Court which did not sound well.

Does not enjoy good reputation and he was an officer of questionable integrity.

1997-1998 Knowledge of law and procedure—Fair. An industrious officer who earned good remarks for the outturn throughout the year, except a poor remark earned by him during 4th quarter 1997. On cognizance side. Is his supervision of the distribution of business among and his control over, the subordinate Courts good?—Good. An efficient Officer. No further complaint were received against him and he appears to have improved so far his integrity was concerned. In view of no further complaints, he may be considered for exercise of enhanced power. Defects—Since last report, I observed none sober and polite officer maintaining good relation with Bar and Colleagues and regard to superior.

1998-1999 Knowledge of law and procedure—Fair. Unlike previous year his remarks throughout the current year was not good or satisfactory, as though it was satisfactory for two quarters, for the rest quarter it was capable of improvement. Is his supervision of the distribution of business among and his control over the Subordinate Courts good?—Good. An officer of average efficiency. No further complaints were received against him and he improved in the matter of integrity. Deserves to be considered for enhanced power. Defects—Since last report, I observed none.

An Officer of sober and polite nature, maintaining good relation with colleagues and Bar and regard for superiors.

1999-2000 Knowledge of law and procedure—Satisfactory. He needs to improve his outturn in Civil side as well as in Sessions side. Is his supervision of the distribution of business among and his control over the subordinate courts good?—Fair. Is he an efficient officer—Average efficient. His reputation is good at this station. He has already been promoted as A.D.J Defects-None.

He is an Officer of an average efficiency, maintaining good relation with colleagues and Bar.

Confidential remarks recorded by Hon'ble Inspecting Judge:

1985-1986 1988-1989 1997-1998 Knowledge of law and procedure — Average — Average. At the time of inspection he was hearing T.S 34/70. The issue subject to have been considered and recast before evidence was started. —Satisfactory 1985-1986 1988-1989 1997-1998 Industrious and prompt in the disposal of cases —Wanting in industry. He should try to improve his outturn. — Average —Fairly industrious and prompt. Quality of Judgments and order— B-Average — Judgments and orders well discussed. Quality satisfactory. —Satisfactory. Is he an efficient Judicial Officer? — Average — Average — Fairly efficient Has he maintained Judicial reputation for honesty and impartiality? —Some complaints were received, but nothing tangible found. They were not to be taken serious note. yes — No complaint. Attitude towards his superiors subordinates and colleagues —Nothing special Courteous —Satisfactory Behaviour towards members of the Bar and public —No adverse report —Co-operative —Cordial Remarks about administrative capability — x —Fair —x Net result —B-Satisfactory —A-hard working Officer of average merit. B+ Good. Hon'ble Uday Sinha Hon'ble R.N Pd. Hon'ble Chy. S.N Mishra. 1998-1999 1999-2000 2000-2001 Knowledge of law and procedure —Fairly satisfactory. Average —Good Industrious and prompt in the disposal of cases —Industrious and prompt in disposal of cases. —Industrious. But he should improve his outturn. —Yes Quality of judgments and orders —Judgments and orders are well written and discussed. To be placed in category B+ good. —B-Average. —B Is he an efficient Judicial Officer? —An efficient Officer. —Average —An average Officer. Has he maintained Judicial reputation for honesty and impartiality? —No complaint was levelled by the member of the Bar or the litigant public and on the whole he maintained good judicial reputation for honesty and impartiality. Nothing has been heard against him —Nothing has been heard against this Officer at this station. Attitude towards his superiors subordinates and colleagues. —Fairly satisfactory. —Good —Good Behaviour towards members of the Bar and public -Fairly satisfactory - Cordial — Cordial Remarks about administrative capability. x x x Net result —His conduct and performance is reasonably good and to be placed in category B+ (good). -Satisfactory. —Over all performance has been found satisfactory. Hon'ble Loknath Prasad Hon'ble Narayan Roy Hon'ble Narayan Roy.

30. The petitioner has received good remarks except in 1975-1976, and 1976-1977 when his work and personality was found to be average and criminal outturn inadequate. However, thereafter he was found to be a capable officer and takes interest in administration. His disposal was also found to be good and also that he enjoyed good reputation at Bar. The confidential remarks of 1984-1985 would show that nothing was found against his honesty and impartiality. In 1986-1987 he Standing Committee recorded its remarks that he possessed good knowledge of law and procedure. He has also been found to be industrious and prompt in disposal of cases and that he exercised very good control and supervision as C.J.M as also on the subordinate staff as Judge I/C Nazarat and Accounts. He has also been found to be an efficient Officer and maintained a very good reputation for honesty and impartiality. It has also been recorded that he is fit to exercise power of an Additional District and Sessions Judge on promotion. He throughout his service career got the remarks ‘B’, ‘B+’, ‘B (Satisfactory)’. The remark of the Hon'ble Inspecting Judge recorded while he was posted at Araria for the year 1997-1998 shows that he has been found ‘Good’. ‘B+ Good’ with respect to knowledge of law and procedure and quality of judgments and orders. Attitude towards his superiors, subordinates and colleagues was found good and he has also been found industrious, and prompt in the disposal of cases, efficient judicial officer; and that there was no complaint about his maintaining judicial reputation for honesty and impartiality. Net result as recorded by the Hon'ble Inspecting Judge as ‘B+ Good’. Even in the last year i.e 2000-2001 the remark of the Hon'ble Inspecting Judge has been ‘Good’, ‘B+’ and that he took keen interest for the completion of new Civil Court Building, and was capable of solving many problems of the judgeship and exercised effective control over his subordinates. Whereas, the confidential remark of Sri Thakur would show that in the year 1977-1978 he was recorded as an Average Officer and disposal was also average. In 1983-1984 it was recorded that he seems to be mediocre Judicial Officer of confused mind. It was also found that he did not carry very good image and was reported to be approachable and also lacked proper control over proceedings in his Court. In the year 1988-1989 it was found that he has average knowledge of law and procedure. He has to work hard in disposing cases, and has to exert more to come up to the standard of an efficient officer. Again in the year 1991-1992 he was found to be an average Officer, having not good reputation and there was several complaints against him by the Bar and litigant public of his integrity. It was recorded that he is an Officer of average merit and intelligence and possess low integrity. In the year 1996-1997 it was recorded that “Does not enjoy good reputation and he was an officer of questionable integrity”. In 1997-1998 he was recorded as an Officer of average efficiency and that no further complaints were received against him and he improved in the matter of integrity. In 1999-2000 it is recorded that his reputation is good at this station and that he is an officer of average efficiency. We, thus, failed to appreciate how the petitioner can be denied of the benefit of extension of retirement age to 60 years when from the service record brought in the record of this case he can neither be held to be indolent, the infirm nor man of doubtful integrity, reputation and utility. Besides that his service record is superior to Sri Thakur.

31. We are quite conscious that even in the latest decision of the Apex Court in the case of Bishwanath Prasad Singh (supra) it has been held that such retirement is not ‘compulsory retirement’ in the sense of its being by way of penalty in disciplinary proceedings or even by way of ‘compulsory retirement in public interest’. But in our opinion, the consideration to grant benefit of the extension of retirement age to 60 years even cannot be contrary to the basic principles, law already settled or any statutory provisions for formation of an opinion as to the potentiality for continued utility of service of a Judicial Officer and such consideration cannot be based either on no material or such materials which do not exist in the eyes of law, otherwise such action would suffer from the vice of malice in law besides being ultra vires Articles 14 & 16 of the Constitution, arbitrary and contrary to the spirit of the judgment of the Apex Court in the case of All India Judges' Association (supra). Before parting with the order, we wish to observe that considering the importance of the matter relating to grant of benefit of extension in service to the Judicial Officer, the High Court, in our opinion, should be cautious and lay down some norms to avoid heart burning and criticism by the members of subordinate judiciary and the standards should be of highest order for strengthening them in discharging of duty impartially and with firmness in accordance with law.

32. For the reasons aforementioned, the writ application is allowed. The decision of the Evaluation Committee, dated 2.5.2000 and of the Full Court, dated 6.5.2000 insofar as they relate to the petitioner are set aside and also the communication in that regard issued by the Registrar General of this Court under his memo no. 6130 dated 17th May, 2000 (Annexure-1) intimating the petitioner that he would retire from service on completing the age of 58 years is quashed. Consequently, the High Court on its administrative side now shall re-examine the case of the petitioner by the Evaluation Committee and the Full Court in the light of this judgment. The Registrar General is directed to bring this matter to the notice of the Hon'ble Chief Justice without any delay so that a meeting of the Evaluation Committee to reconsider the case of the petitioner may be convened at an early date. However, in the facts and circumstances, there shall be no order as to costs.