IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED …judgmenthck.kar.nic.in/judgments/bitstream/...in...

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IN THE HIGH COURT OF KARNATAKA, BANGALORE

DATED THIS THE 20TH DAY OF SEPTEMBER, 2012

PRESENT

THE HON'BLE MR. VIKRAMAJIT SEN, CHIEF JUSTICE

AND

THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA

W.A.No.623/2012 C/W. W.A.NOS.624/2012, 625/2012,626/2012, 627/2012, 628/2012, 629/2012, 630/2012,

631/2012, 632/2012, 1138/2012 & 1453-54/2012 (S-DIS)

IN W.A.No.623/2012

BETWEEN:

1.THE STATE OF KARNATAKA,REP. BY ITS CHIEF SECRETARY,TO THE GOVERNMENT OF KARNATAKA,VIDHANA SOUDHA,AMBEDKAR VEEDHI,BANGALORE-560 001.

2.THE HIGH COURT OF KARNATAKA,REP. BY ITS REGISTRAR GENERAL,BANGALORE-560 001. ... APPELLANTS

(BY SRI: B.VEERAPPA, AGA FOR A1, SRI.B.V.ACHARYA, SR.COUNSEL A/W SRI.B.L.ACHARYA, ADV. FOR A2)

AND:

SRI.T.NAGAPPA,S/O BASAPPA,AGED ABOUT 56 YEARS,RESIDING AT NO.80, 1ST FLOOR,

R

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GANGOTRI LAYOUT,MYSORE. ... RESPONDENT

(BY SRI: G.VIDYA SAGAR AND SRI.CHAITRESH.D.HABBU,ADV.)

******

THIS WRIT APPEAL IS FILED U/S 4 OF THEKARNATAKA HIGH COURT ACT PRAYING TO SET ASIDETHE ORDER PASSED IN THE WRIT PETITIONNO.30016/2009(S-DIS) DATED 03/01/2012.

IN W.A.No.624/2012

BETWEEN:




AND:

SRI MARTHAND,S/O PARAPPA TONNE,AGED ABOUT 59 YEARS,R/A NO.96, BURUDA GALLI,CHIKKODI, BELGAUM. ... RESPONDENT

(BY SRI: G.B.MANJUNATH, ADV. A/WSRI.G.VIDYA SAGAR, ADV.)

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*****


IN W.A.No.625/2012

BETWEEN:




AND:

SRI. SHIVANAND DHAGE,S/O NARASINGAPPA DHAGE,AGED ABOUT 57 YEARS,R/A NO.419/10, KARLA COMPOUND,ANANTHASHAYAN, KARKALA,UDUPI DISTRICT. ... RESPONDENT

(BY SRI: G.VIDYA SAGAR, ADV. AND SRI.H.N.M.PRASAD,ADV.)

*****

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IN W.A.No.626/2012

BETWEEN:




AND:

SRI. ANWAR,S/O DAVALSAB ANSARI,AGED ABOUT 55 YEARS,R/AT “AMEENA MANZIL”,KUMARESHWAR LAYOUT,RAJTGIRI, DHARWAD. ... RESPONDENT

(BY SRI: G.B.MANJUNATH, ADV. &SRI.G.VIDYA SAGAR, ADV.)

*****

THIS WRIT APPEAL IS FILED U/S 4 OF THEKARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE

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THE ORDER PASSED IN THE WRIT PETITIONNO.30020/2009(S-DIS) DATED 03/01/2012.

IN W.A.No.627/2012

BETWEEN:




AND:

SRI.C.R.JAWEED PASHA,S/O C.ABDUL RAZACK,AGED ABOUT 57 YEARS,R/AT NO.5/4, UPSTAIRS,1ST CROSS, 2ND MAIN,WILSON GARDEN,BANGALORE. ... RESPONDENT

(BY SRI: G.VIDYA SAGAR, ADV. A/W SRI.G.B.MANJUNATH,ADV)

*****


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IN W.A.No.628/2012

BETWEEN:




AND:

SRI. ULHAS,S/O ISHWAR BALEKUNDRI,AGED ABOUT 57 YEARS,R/AT NO.S-28, SHRADHA RESIDENCY,SAMPIGE ROAD,SADASHIV NAGAR,BELGAUM. ... RESPONDENT

(BY SRI: G.B.MANJUNATH, ADV. A/WSRI.G.VIDYA SAGAR, ADV.)

*****


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IN W.A.No.629/2012

BETWEEN:




AND:

SRI. MAHANTHA GOUDA BIRADARA,S/O LATE BASAVANNA BIRADARA,AGED 60 YEARS,R/AT NO.27, “SRINIVASA”,17TH ‘A’ CROSS, BHUVANESHWARANAGAR,NEAR COFFEE BOARD LAYOUT,BANGALORE-560 024. ... RESPONDENT

(BY SRI: VISHWANATH HIREMATH, ADV. A/WSRI.G.B.MANJUNATH, ADV. FOR C/R1)

*****


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IN W.A.No.630/2012

BETWEEN:




AND:

SRI. LAKSHMIKANT,S/O RAMAPPA DESHI,AGED ABOUT 61 YEARS,R/AT NO. A-4, 406,THUNGABHADRA BLOCK,NGV KORAMANGALA,BANGALORE-560 047. ... RESPONDENT

(BY SRI: G.B.MANJUNATH, ADV. A/WSRI.G.VIDYA SAGAR, ADV. FOR C/R)

*****


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IN W.A.No.631/2012

BETWEEN:



(BY SRI: B.VEERAPPA, AGA FOR A1, SRI.B.L.ACHARYA,ADV. A/W SRI.B.V.ACHARYA, SR. COUNSEL FOR A2)

AND:

SRI. BAPUJI,S/O THIMMAPPA CHANAL,AGED ABOUT 57 YEARS,OCC: RETD. CIVIL JUDGE (SR. DN.),R/O BIDARI TQ: JAMKHANDI,DIST: BAGALKOT-587301,NOW TEMPORARILY RESIDING AT# 81 A/15D “SUPRABATH”,MICHIGAN COMPOUND,DHARWAD-580 001. ... RESPONDENT(BY SRI: S.P.KULKARNI, ADV.)

*****


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IN W.A.No.632/2012

BETWEEN:

1.THE REGISTRAR GENERAL,HIGH COURT OF KARNATAKA,BANGALORE.

2.STATE OF KARNATAKA,REPRESENTED BY ITS SECRETARY,DEPARTMENT OF PERSONNEL ANDADMINISTRATIVE REFORMS,VIDHANA SOUDHA,BANGALORE-560 001.

3.THE SECRETARY TO THE GOVERNMENTOF KARNATAKA,DEPARTMENT OF LAW,JUSTICE AND HUMAN RIGHTS,VIDHANA SOUDHA,BANGALORE-560 001. ... APPELLANTS


AND:

SRI RUDRAMUNI RUDRAPPAYYA BHAIRANAPADAMATH,AGED ABOUT 57 YEARS,S/O LATE RUDRAPPAYYA BHAIRANAPADAMATH, CIVIL JUDGE (SENIOR DIVISIONAND JMFC), NAGAMANGALA,MANDYA DISTRICT,(UNDER ORDERS OF COMPULSORYRETIREMENT FROM SERVICE). ... RESPONDENT

(BY SRI: K.C.SHANTHAKUMAR, ADV. FOR C/R1)

*****

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THIS WRIT APPEAL IS FILED U/S 4 OF THEKARNATAKA HIGH COURT ACT PRAYING TO SET ASIDETHE ORDER PASSED IN THE WRIT PETITIONNO.27829/2009(S-R) DATED 03/01/2012.

IN W.A.Nos.1138/2012 & 1453-54/2012

BETWEEN:




AND:

1.SRI SHIVAPUTRAPPA YAMANAPPA KUMBAR,S/O. YAMANAPPA,AGED ABOUT 58 YEARS,R/AT NO. 394, 18TH MAIN,6TH BLOCK, KORAMANGALA,BANGALORE-560 095.

2.SRI M.RAJU,S/O MUREGEPPA.G,AGED ABOUT 60 YEARS,R/AT NO.402, SITARA RESIDENCY,33RD MAIN, B.T.M. I STAGE,DOLLARS COLONY,BANGALORE-560 068.

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3.SRI. VASANTH HUCHAPPA MULASAVALAGI,S/O HUCHAPPA MULSAVALAGI,AGED ABOUT 60 YEARS,R/AT NO.10, NANJAPPA LAYOUT,I MAIN, 2ND CROSS, KORAMANGALA,8TH BLOCK, BANGALORE-560 047. ... RESPONDENTS

(BY SRI: G.VIDYASAGAR, ADV. A/W SRI.G.B.MANJUNATH,ADV. AND SRI.H.N.M.PRASAD, ADV. FOR R1)

*****

THESE WRIT APPEALS ARE FILED U/S 4 OF THEKARNATAKA HIGH COURT ACT PRAYING TO SET ASIDETHE ORDER PASSED IN THE WRIT PETITIONNOS.30021/2009 C/W WP.NO.30023/2009 C/WWP.NO.30025/2009 (S-DIS) DATED 30/01/2012.

THESE APPEALS BEING RESERVED AND COMINGON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,NAGARATHNA J., DELIVERED THE FOLLOWING:

JUDGMENT

These writ appeals are filed by the State and the High

Court, through the Registrar General, assailing the separate

judgments dated 03/01/2012, passed by the learned Single

Judge in the writ petitions filed by each of the respondents

herein.

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2. Since the issues raised in these writ petitions

are similar, these appeals have been heard together and are

disposed of by this common judgment.

3. The respondents in these appeals were Judicial

Officers in the State who had assailed the Notification dated

23/06/2009, issued in the name of the Governor of

Karnataka, in exercise of the powers conferred on him under

Section 233 of the Constitution of India. By the said

Notification, the respondents were retired from service under

sub-rule (4) of Rule 285 of the Karnataka Civil Services

Rules (hereinafter, referred to as “KCSR” for the sake of

convenience) with immediate effect. In fact, by the said

Notification, fifteen Judicial Officers were ordered to be

retired from service, out of which, thirteen such Officers

assailed the said Notification by filing separate writ petitions.

4. Prior to the issuance of the impugned

Notification dated 23/06/2009, permitting the compulsory

retirement of the fifteen Officers, the High Court had

constituted a Screening Committee by issuance of

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Notification dated 28/09/2005 as per the recommendation

of the 1st National Judicial Pay Commission accepted by the

Hon’ble Supreme Court in the case of All India Judges

Assn. v. Union of India (2002 (4) SCC 247) to review the

performance of officers prior to their attaining 58 years of

age in order to determine as to whether they could continue

upto 60 years. The said Committee was also entrusted to

review the performance and confidential records of all the

Judicial Officers in the cadre of District Judges, Civil Judges

(Sr.Dn.) and Civil Judges (Jr.Dn.) on their attaining the age

of 50 years or 55 years as the case may be to decide upon

the desirability, utility and suitability, to continue them in

service or for retiring them from service in public interest, in

terms of sub-rule (4) of Rule 285 of the KCSR. The said

Committee met on 17/4/2009 and considered the suitability

of all the Judicial Officers who had completed 50 or 55 years

of age as the case may be and submitted its Report

recommending compulsory retirement of fifteen Judicial

Officers under Sub-rule (4) of Rule 285 of KCSR. Thereafter,

the Full Court met on 25/4/2009 and accepted the Report of

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the said Committee and a Resolution to that effect was

passed. Thereafter, the impugned Notification dated

23/06/2009 was issued ordering retirement of the fifteen

Judicial Officers.

5. Assailing the same before the learned Single

Judge, the respondent - Officers had contended that their

premature retirement from service purportedly in public

interest was in contravention of Article 311 of the

Constitution of India; that while invoking Rule 285 of the

KCSR, it was obligatory on the part of the competent

authority to follow the procedure prescribed under the

Constitution of India. It was also contended that as far as

invocation of Rule 285 of KCSR in the case of Government

servants were concerned, there were guidelines which were

applicable but insofar as the Judicial Officers are concerned,

there were no guidelines or Rules framed or followed; that

the Judicial Officers had the right to continue in service till

they attained the age of superannuation at 60 years subject

to a review contemplated when they attained the age of 58

years and that the law did not permit any review of the

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career of the Judicial Officers prior to his/her attaining the

age of 58 years; that the invocation of Article 235 of the

Constitution in the instant case was in violation of the

Principles of Natural justice and therefore, the Notification

23/06/2009 was illegal and had no validity in the eye of law.

6. The impugned Notification dated 23.06.2009

was supported by the State by contending that a Judicial

Officers could be compulsorily retired from service on the

competent authority forming an opinion that continuing

him/her in service would not be in public interest. That an

order of compulsory retirement would not carry any stigma

and that all the service benefits that a person is entitled to

on the passing of an order of compulsory retirement would

be granted to such an officer; that sub-rule (4) of Rule 285

does not envisage issuance of a notice or holding of an

enquiry before passing an order of compulsory retirement;

that there is no violation of Article 311 of the Constitution or

the Principles of Natural justice in the instant case. That the

High Court had constituted a Committee for the purpose of

screening the performance of the Judicial Officers for their

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continuation in service beyond 50 years or 55 years as the

case may be and the Report of the Committee had been

accepted by the Full Court of the High Court and therefore,

there is no merit in the writ petitions.

7. By way of reply, the respondents herein had

contended before the learned Single Judge that the

procedure adopted by the High Court culminating in the

impugned notification dated 23/06/2009 was contrary to

the directions of the Apex Court in various decisions.

Further, the Resolution of the Committee of Judges as well

as the Full Court Resolution did not reflect the review of the

performance made in the case of each of the Judicial Officers

who were retired. Therefore, the exercise of power was not in

accordance with law.

8. In the light of the above contentions, the learned

Single Judge framed the following points for his

consideration in each of the Writ Petitions.

i) Whether the Notification dated 28/9/2005

was invalid as being contrary to the law as

laid down by the Apex Court?

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ii) Whether the impugned notification by

which the petitioner was compulsorily

retired from service in terms of Rule 285(4)

of the KCSRs is actually punitive in nature,

though couched in innocuous language as

being compulsory retirement, on being

found unsuitable to be continued in service

in public interest?

iii) Whether it is no longer permissible for the

competent authority to undertake a review

of a Judicial Officers’ performance, either at

the time, the officer attains the age of 50 or

55 or on completion of the 20 years of

service?

iv) Whether the exercise was permissible

insofar as the petitioner was concerned?

9. While answering the said points, the learned

Single Judge held that sub-rule (4) of Rule 285 of the KCSR

could no longer be pressed into service insofar as Judicial

Officers are concerned; that the question of desirability,

utility and suitability to continue as Judicial Officers in

service or to retire them from service in public interest could

only be on proven mis-conduct; that only prior to the

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Judicial Officers attaining the age of 58 years could they be

assessed and evaluated for their being continued in service

and not prior to that stage. Therefore, the exercise of power

in the instant cases and the Notification dated 28/09/2005

were contrary to law as laid down by the Apex Court and

accordingly answered the points for consideration in favour

of the respondents herein and allowed the writ petitions by

quashing the Notification 28/09/2005. A direction was also

issued to reinstate the respondents herein with continuity in

service and with all consequential benefits. The said order of

the learned Single Judge passed in the case of each of the

respondents herein has been assailed in these writ appeals.

10. We have heard the learned Senior Counsel along

with the AGA for the appellants and the learned counsel for

the respondents.

11. Learned Senior Counsel appearing for appellant

No.2 submitted that the learned Single Judge was not right

in holding that Rule 285 of KCSR is no longer applicable to

Judicial Officers in view of the decisions of the Apex Court.

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It was pointed out that the latest decision of the Apex Court

in the case of Rajendra Singh Verma (Dead) through L.Rs

And Others v. Lieutenant Governor (NCT of Delhi) and

others [(2011) 10 SCC 1], has explained the position of law

with regard to the powers that could be exercised by the

High Court under Article 235 of the Constitution which also

includes premature/compulsory retirement of the members

of the subordinate judiciary; that All India Judges’ Assn.

and Others v. Union of India and others [1993 (4) SCC

288] and two other decisions in All India Judges’ Assn. were

concerned with the age of a retirement of a Judicial Officers

on attaining superannuation and not with compulsory

retirement of Judicial Officers. But the learned Single Judge

has based his reasoning on the dicta of the decisions in All

India Judges’ Assn. to come to a conclusion that sub-rule (4)

of Rule 285 could no longer be invoked in the case of

Judicial Officers which is not correct.

12. Drawing our attention to the case of

Bishwanath Prasad Singh v. State of Bihar and Others

[(2001) 2 SCC 305], it was contended that compulsory

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retirement by way of penalty is quite distinct from

compulsory retirement in public interest; that in the instant

case, the order of compulsory retirement is in public interest

and not by way of penalty and therefore, there was no

violation of the Principles of Natural justice or infraction of

any other mandate of the law, which could have called for

the intervention of the Court. It was also contended that the

learned Single Judge was not right in observing that the

order of compulsory retirement in the instant case was

passed as a short-cut to avoid a departmental enquiry and

therefore, it was punitive in nature.

13. Drawing our attention to the case of Rajendra

Singh Verma, it was contended that the grounds which

would arise for assailing an order of compulsory retirement

impugned in the writ petitions have not at all been raised in

these cases; therefore the learned Single Judge was not right

in ordering reinstatement of the respondent – Officers by

setting aside the order of compulsory retirement.

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14. Placing reliance on certain other decisions of the

Apex Court as well as this Court, it was contended that the

order of the learned Single Judge passed in the case of each

of the respondents has to be set aside by allowing these

appeals.

15. Per contra, learned counsel for the respondents

in unison supported the order of the learned Single Judge. It

was contended that the three decisions of the Apex Court in

the case of All India Judges’ Association have a bearing on

these cases. That in the first decision inter alia, the age of

superannuation for Judicial Officers was held to be 60 years;

that in the second decision, there was a review of the

judgement passed in the earlier decision and it was observed

that the age of retirement was to be 60 years subject to

review of the concerned Judicial Officers at 58 years; that in

the third decision of All India Judges’ Assn. once again, it

was affirmed that the age of superannuation insofar as

Judicial Officers are concerned, has to be at 60 years. The

Report of the First National Judicial Pay Commission under

the Chairmanship of Justice K.Jagannath Shetty, (Retd.)

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Judge, Supreme Court of India, was accepted by the Apex

Court. That Rule 95-A of KCSR was inserted pursuant to

the decision of the Apex Court in All India Judges’

Association permitted review of the performance of the

Judicial Officers prior to attaining 58 years but the same

was deleted in December 2008 and therefore, the review of

Officers on completion of the age of 50 years or 55 years was

not permissible. Therefore, the High Court could not have

constituted a Committee for review of the Judicial Officers

who had completed the age of 50 years or 55 years as the

case may be; that the consideration made by the Committee

was an exercise in futility as in terms of the decision in the

All India Judges’ Assn., the only review of performance that

was permissible was at 58 years for the purpose of

ascertaining as to whether the Judicial Officers could be

continued beyond 58 years till the age of superannuation at

60 years in terms of the said decision. Therefore, review of

the performance of the Judicial Officers on attaining the age

of 50 years or 55 years was not permissible as there was now

no provision available for the exercise of such power after the

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decision of the Apex Court in All India Judges’ Assn. It was

also contended that in the absence of any guidelines and the

impugned order not reflecting the manner of assessment of

the performance of the concerned Judicial Officers, the

exercise of powers was arbitrary and that there was violation

of Article 311 of the Constitution in the instant case.

16. Reliance was also placed on Nawal Singh v.

State of U.P. (AIR 2003 SC 117) and also the Full Bench

decision of the Andhra Pradesh High Court in the case of

K.Veera Chary Vs. Hon’ble High Court of Andhra

Pradesh (2008 (5) ALD 372 (F.B.). Other learned counsel

appearing for respondents while adopting these arguments

and by placing reliance on certain decisions, contended that

the procedure followed in the instant case culminating in the

compulsory retirement of the respondent – Officers was not

in accordance with law. Therefore the learned single Judge

was justified in quashing the order of compulsory retirement

and ordering re instatement, which orders would not call for

any intervention in these appeals.

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17. Learned Govt. Advocate placing reliance on

Rajendra Singh Verma’s case and other cases, supported the

contentions of the learned Senior Counsel appearing for

appellant No.2.

18. By way of reply, learned Senior Counsel

appearing for appellant No.2 contended that there was no

infraction in the constitution of the Committee to review the

performance of Judicial Officers who had completed 50 years

or 55 years of age as the case may be. That earlier a

Committee was constituted to review the performance of the

Judicial Officers who were to complete the age of 58 years for

the purpose of ascertaining as to whether the Judicial

Officers could be continued up to 60 years, the very same

Committee was entrusted with the task of reviewing the

performance of the Judicial Officers who had attained 50

years or 55 years, there was no ambiguity in the functioning

of the Committee. That sub-rule (4) of Rule 285 is applicable

while reviewing the performance of the Judicial Officers at 50

years or 55 years. That the Full Bench opinion of the

Andhra Pradesh High Court is contrary to latest decision of

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the Supreme Court in Rajendra Singh Verma, and that Rule

285 squarely applies in the instant case. Therefore, the

learned Single Judge was not right in quashing the order of

compulsory retirement.

19. On a consideration of the aforesaid contentions,

the following points would arise for our consideration:-

1. Whether Rule 285 of the KCSR is applicable to the

Judicial Officers of the State in the matter of

compulsory retirement?

2. Whether the learned Single Judge was right in

quashing the notification of compulsory retirement

and ordering reinstatement of the respondent –

Officers?

20. Before considering the points for consideration it

would be relevant to extract Article 235 of the Constitution of

India and the same reads as follows:-

“235.Control over subordinate courts

The control over district courts and

courts subordinate thereto including the

posting and promotion of, and the grant of

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leave to, persons belonging to the judicial

service of a State and holding any post

inferior to the post of district judge shall be

vested in the High Court, but nothing in this

article shall be construed as taking away

from any such person any right of appeal

which he may have under the law regulating

the conditions of his service or as

authorising the High Court to deal with him

otherwise than in accordance with the

conditions of his service prescribed under

such law.”

21. The Supreme Court has elucidated on the

mandate of Article 235 in the following decisions:

a) In Bishwanath Prasad Singh Vs. State of Bihar and

Others, (2001) 2 SCC 305), it is observed that Article 235 of

the Constitution vests administrative and disciplinary

control over the district judiciary including the subordinate

judiciary in the High Court immunising them from the

executive control of the State Government so as to protect

judicial independence. Control over subordinate courts

vested in the High Court is a trust and confidence reposed

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by the founding fathers of the Constitution in a high

institution like the High Court. The trust has to be

discharged with a great sense of responsibility. All the High

Courts have framed rules dealing with executive and

administrative business of the Court. There are

administrative committees and Inspecting Judges in the

High Court. Periodical inspections of subordinate courts

have to be carried out regularly so as to keep a vigil and

watch on the functioning of the subordinate judiciary, the

importance and significance whereof needs no emphasis.

b) In Chandra Singh Vs. State of Rajasthan, (2003) 6

SCC 545), the Court observed as under:

“40. Article 235 of the Constitution of India

enables the High Court to assess the

performance of any Judicial Officers at any time

with a view to discipline the black sheep or weed

out the dead wood. This constitutional power of

the High Court cannot be circumscribed by any

rule or order.”

c) In Rajendra Singh Verma (Dead) Through Lrs. And

Others Vs. Lieutenant Governor (NCT of Delhi) and

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Others, (2011) 10 SCC 1), it is observed that the mandate of

Article 235 of the Constitution is that the High Court has to

maintain constant vigil on its subordinate judiciary as laid

down in High Court of Judicature of Bombay v.

Shirishkumar Rangrao Patil, (1997) 6 SCC 339. In the said

case, this Court has explained that the lymph nodes

(cancerous cells) of corruption constantly keep creeping into

the vital veins of the judiciary and need to stem it out by

judicial surgery lies on the judiciary itself by its self-imposed

or corrective measures or disciplinary action under the

doctrine of control enshrined in Articles 235 and 124(6) of

the Constitution, and therefore, it would be necessary that

there should be constant vigil by the High Court concerned

on its subordinate judiciary and self-introspection.

It was further observed that judicial service is not a

service in the sense of an employment as is commonly

understood. 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. There is no

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manner of doubt that the 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.

While elucidating on the expression “control”, the Apex

Court has observed as follows:

“98. The expression “control” has been

elucidated in several reported decisions of this

Court, the leading case being Samsher Singh v.

State of Punjab [(1974) 2 SCC 831]. The

“control” vested in the High Court is a

mechanism to ensure independence of the

subordinate judiciary. Under Article 235 of the

Constitution, the control over the subordinate

judiciary, vested in the High Court, is exclusive

in nature, comprehensive in extent and effective

in operation and it is to subserve a basic feature

of the Constitution i.e., independence of

judiciary. Among others things, it includes:

(a)(i) disciplinary jurisdiction and a complete

control subject only to the power of the Governor

in the matter of appointment, dismissal, removal

and reduction in rank of the District Judges and

initial posting and promotion to the cadre of

District Judges, (ii) in Article 235 the word

“control” is accompanied by the word “vest”

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which shows that the High Court alone is made

the sole custodian of the control over the

judiciary, and (iii) suspension from service of a

member of judiciary with a view to hold

disciplinary enquiry;

(b) transfers, promotion and confirmation of

such promotions, of persons holding posts in

judicial service, inferior to that of the District

Judge;

(c) transfer of District Judges;

(d) recall of District Judges posted on

ex-cadre posts or on deputation on

administrative posts;

(e) award of selection grade to the members of

the judicial service, including District

Judges and grant of further promotion

after their initial appointment to the cadre;

(f) confirmation of the District Judges who

have been on probation or are officiating

after their initial appointment or

promotion by the Governor to the cadre of

District Judges under Article 233; and

(g) premature or compulsory retirement of

Judges of the District Courts and of

subordinate courts.”

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22. Therefore, premature or compulsory retirement

of Judges of subordinate judiciary is one of the aspects of

control over subordinate judiciary by vesting of power in the

High Court under Article 235 of the Constitution. The same

is therefore a constitutional control which would not really

require a statutory support. Even in the absence of any

provision in a statute or Rule specifically vesting Power in

the High Court to compulsorily retire any Judicial Officers,

the same being traceable to Article 235 of the Constitution,

can be exercised by the High Court in accordance with law

and judicial precedents. Therefore in the exercise of the

Constitutional power to compulsorily retire Judicial Officers,

the High Court is guided by settled principles of law.

23. At this stage it is relevant to advert to the

content of the expression compulsory retirement. The

concept of compulsory retirement in service jurisprudence

has been explained in the following decisions of the Apex

Court:

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a) In Bishwanath Prasad Singh Vs. State of Bihar and

Others, (2001) 2 SCC 305, the conceptual content has been

explained by stating that Compulsory retirement in service

jurisprudence has two meanings. Under the various

disciplinary rules, compulsory retirement is one of the

penalties inflicted on a delinquent Government servant

consequent upon a finding of guilt being recorded in

disciplinary proceedings. Such penalty involves stigma and

cannot be inflicted except by following the procedure

prescribed by the relevant rules or consistently with the

principles of natural justice if the field for inflicting such

penalty be not occupied by any rules. Such compulsory

retirement in the case of a Government servant must also

withstand the scrutiny of Article 311 of the Constitution, so

also for Judicial Officers. Then there are service rules, such

as Rule 56(j) of the Fundamental Rules, which confer on the

Government or the appropriate authority, an absolute (but

not arbitrary) right to retire a Government servant on his

attaining a particular age or on his having completed a

certain number of years of service on formation of an opinion

-: :-34

that in public interest it is necessary to compulsorily retire a

Government servant. In this case, it is neither a punishment

nor a penalty with loss of retiral benefits. More

appropriately, it is like premature retirement. It does not

cast any stigma. The Government servant shall be entitled

to the pension actually earned and other retiral benefits. So

long as the opinion forming the basis of the order for

compulsory retirement in public interest is formed bona fide,

the opinion cannot be ordinarily interfered with by a judicial

forum. Such an order may be subjected to judicial review on

very limited grounds such as the order being mala fide,

based on no material or on collateral grounds or having been

passed by an authority not competent to do so. The object of

such compulsory retirement is not to punish or penalise the

Government servant but to weed out the worthless who have

lost their utility for the administration by their insensitive,

unintelligent or dubious conduct impeding the flow of

administration or promoting stagnation. The country needs

speed, sensitivity, probity, non-irritative public relation and

enthusiastic creativity which can be achieved by eliminating

-: :-35

the dead wood, the paperlogged and callous. The

controversy in the present case is as to whether this type of

compulsory retirement is permissible vis-à-vis Judicial

Officers.

b) More recently in Rajendra Singh Verma (Dead)

through Lrs. and Others Vs. Lieutenant Governor (NCT of

Delhi) and Others, (2011) 10 SCC 1, the consequences of

an order of compulsory retirement is explained by observing

that Compulsory retirement from service is not considered to

be a punishment. Under the relevant rules, an order of

dismissal is a punishment laid on a Government servant

when it is found that he has been guilty of misconduct or the

like. It is penal in character because it involves loss of

pension which under the rules has accrued in respect of the

service already put in. An order of removal also stands on

the same footing as an order of dismissal and involves the

same consequences, the only difference between them being

that while a servant who is dismissed is not eligible for

reappointment, one who is removed is. A compulsory

retirement is neither dismissal nor removal and differs from

-: :-36

both of them, in that it is not a form of punishment

prescribed by the rules and involves no penal consequences,

inasmuch as the person retired is entitled to pension and

other retiral benefits, proportionate to the period of service

standing to his credit.

24. Before proceeding further, the trilogy of

decisions in All India Judges’ Assn. could be considered

since the genesis of the present controversy is predicated on

the same.

a) In All India Judges’ Association v. Union of

India and Others [1992 (1) SCC 119], one of the issues

considered by the Supreme Court was the age of retirement

by superannuation of the members of the subordinate

judiciary in India. After referring to Clause (ii) of Article 233,

which states that a person would be eligible to be appointed

as District Judge, if he has been for not less than seven

years an Advocate or a Pleader and considering the nature of

work of a Judicial Officers, the Supreme Court opined as

follows:-

-: :-37

“20. There is a marked distinction

between the nature of work which executive

officers and Judicial Officers are called upon to

discharge. The work of the Judicial Officers is

usually sedentary while that of the executive

officers involves a lot of physical movement.

This is particularly so in the lower cadres of both

the services. In view of this feature physical

fitness is more important for an executive officer

than in case of a Judicial Officers while in case

of Judicial Officers, there is thus necessarily

more of a mental activity than physical.

Experience is an indispensable factor and

subject to the basic physical fitness with

growing age, experience grows.

21. As already indicated, retirement age

for High Court Judges is 62 years. A sizeable

portion of the manning in the High Court is done

by elevating District Judges and those who are

elevated to continue up to the age of 62 years

like directly elevated members of the bar to the

High Court.

* * * *

25. The recommendation that

superannuation should be fixed at 58 for

Judicial Officers was made at a time when in

public services retirement was prescribed at the

-: :-38

age of 55. Considering the enhancement of the

longevity of human life and taking all other

relevant considerations into account, all the

States and all the Union territories have now

enhanced the age of retirement to 58 years

excepting, as already pointed out, in the case of

the State of Kerala. We are of the view that on

the logic which was adopted by the Law

Commission and for the reasons which we have

indicated the age of retirement of Judicial

Officers should be 60 years. We accordingly

direct that appropriate alterations shall be made

in the Rules obtaining in the States and Union

territories in respect of judicial service so as to

fix the age of retirement at 60 years with effect

from December 31, 1992. We have given a long

period so that appropriate amendments may be

made in the meantime.”

b) In All India Judges’ Association and Others

Vs. Union of India and Others [1993 (4) SCC 288], the

direction with regard to age of superannuation of the

Judicial Officers was modified thus:-

“52 to sum up we held as follows:

(a) x x x

-: :-39

(b) The direction with regard to the enhancement

of the superannuation age is modified as follows:

While the superannuation age of every

subordinate Judicial Officers shall stand

extended up to 60 years, the respective High

Courts should, as stated above, assess and

evaluate the record of the Judicial Officers 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. In case he is not

found fit and eligible, he should be compulsorily

retired on his attaining the age of 58 years.

The assessment in question should be

done before the attainment of the age of 58 years

even in cases where the earlier superannuation

age was less than 58 years.

The assessment directed here is for

evaluating the eligibility to continue in service

beyond 58 years of age and is in addition to and

independent of the assessment for compulsory

retirement that may have to be undertaken

under the relevant Service rules, at the earlier

stage/s.”

-: :-40

c) In All India Judges’ Association and Others

v. Union of India and Others [2002 (4) SCC 247], the

recommendation of the Justice Shetty Commission to

increase the age of retirement from 60 to 65 years was not

accepted by the Supreme Court by giving the following

reasons:-

“26. The Shetty Commission had recommended

that there should be an increase in retirement

age from 60 to 62 years. In our opinion, this

cannot be done for the simple reason that the

age of retirement of a High Court Judge is

constitutionally fixed at 62 years. It will not be

appropriate, seeing the constitutional framework

with regard to the judiciary, to have an identical

age of retirement between the members of the

Subordinate Judicial Service and a High Court.

As of today, the age of retirement of a Supreme

Court Judge is 65 years, of a High Court Judge

it is 62 years and logically the age of retirement

of a Judicial Officers is 60 years. This difference

is appropriate and has to be maintained.

However, as there is a backlog of vacancies

which has to be filled and as the Judge strength

has to be increased, as directed by us, it would

be appropriate for the States in consultation

-: :-41

with the High Court to amend the service rules

and to provide for re-employment of the retiring

Judicial Officers till the age of 62 years if there

are vacancies in the cadre of the District Judge.

We direct this to be done as early as possible.”

25. In Bishwanath Prasad Singh v. State of

Bihar (2001 (2) SCC 305), the Supreme Court has observed

as follows with regard to the modified directions in the

second of the aforesaid cases :

“5. In All India Judges’ Assn. v. Union

of India, one of the directions given was to raise

the retirement age of Judicial Officers to 60

years uniformly throughout the country and

appropriate steps in that regard being taken by

31-12-1992. The Court was at pains in

demonstrating how the members of judicial

services stand on pedestal different from other

civil services and, therefore, deserve to be dealt

with by ameliorating service conditions so as to

provide initiative for attracting better persons in

judicial services and which would tend to raise

the tone and morale of the judicial services as a

whole, the services being essential bulwark of

democracy. The executives of the Union of India

and various States, far from complying with the

-: :-42

directions, chose to prefer several review

petitions which were heard and disposed of by

this Court by its judgment dated 24-8-1993,

reported as All India Judges’ Assn. v. Union of

India. Feeling anguished by inaction on the part

of the executive, this Court issued very many

directions in continuation of and also in

modification of those made in 1992 case.”

* * * *

“18. We may sum up our conclusions on

this aspect as under:

1. Direction with regard to the enhancement

of superannuation age of Judicial Officers given

in All India Judges Assn. v. Union of India does

not result in automatic enhancement of the age

of superannuation. By force of the judgment a

Judicial Officers does not acquire a right to

continue in service up to 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

-: :-43

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 Officers 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 Officers 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 Officers

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

-: :-44

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 Officers 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 or extended age of

superannuation, would stand retired at the

normal age or date of superannuation.”

Therefore, the age of superannuation for the members

of the subordinate judicial service was fixed at 60 years by

the Apex Court with a direction given to all State

Governments as well as Union Territories to amend the

Service Rules.

26. On a conspectus reading of the three judgments

in All India Judges’ Assn. what emerges is the fixation of the

-: :-45

age of retirement of Judicial Officers on superannuation at

60 years in the first of the cases. Accordingly, a direction

was issued to make appropriate alterations in the Rules

obtaining in the States and Union Territories in respect of

judicial service so as to fix the age of retirement at 60 years

with effect from 31/12/1992.

27. The second All India Judges’ Assn. was in fact a

review sought by the Union of India and various States

raising general and specific objections to the several

directions issued by the Apex Court in the earlier judgment

with regard to the service conditions of the members of the

subordinate judiciary in the country. With regard to the age

of superannuation, an objection was raised with regard to

the determination of the age by the Apex Court on the

ground that it is a matter of policy for the executive and that

the said age had been fixed having regard to the distinction

between the members of the judicial service and other

services. The objection with regard to fixation of the age of

superannuation at 60 years was considered and a

modification was made by stating that the benefit of the

-: :-46

increase of the retirement age to 60 years would not be

available automatically to all Judicial Officers irrespective of

their past record of their service and evidence of their

continued utility to the judicial system. The benefit was to

be available to those who in the opinion of the respective

High Courts had a potential for continued useful service by

making an assessment and evaluation by an appropriate

Committee of Judges of the respective High Courts. The

evaluation was to be made on the basis of the Judicial

Officers’ past record of service, character roles, quality of

judgment and other relevant materials. It was also observed

that 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 was made clear that

this assessment is for the purpose of finding out the

suitability of the concerned officers for the entitlement of the

benefit of the increased age of superannuation from 58 years

to 60 years. It is in addition to the assessment to be

-: :-47

undertaken for compulsory retirement at the earlier stage/s

under the respective Service Rules.

28. The enhancement of the superannuation age of

60 years coupled with the provision for compulsory

retirement at the age of 58 years introduced a change in the

service condition of the Judicial Officers in the State. An

amendment to KCSR by way of insertion of Rule 95A was

made by the State Government on 26/08/1997 with effect

from 1/1/1993. The same reads as follows:

“[95-A. The age of retirement of Judicial Officers

shall be raised to 60 years subject to the

following conditions, namely:-

1) The High Court of Karnataka should

assess and evaluate the record of the Judicial

Officers 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.

-: :-48

2) If found not fit, and ineligible he

should be compulsorily retired on his attaining

the age of 58 years.

3) The assessment as indicated above

should concerned administrative Department

shall be the competent authority to sanction the

stagnation increments;

4) The above assessment is for

evaluating the eligibility to continue in service

beyond 58 years 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

writing by the Judicial Officers 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 of 57 years, shall be

deemed to have opted for continuing in service

till the enhanced superannuation age of 60

-: :-49

years with the liability to compulsory retirement

at the age of 58 years.

7) 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 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 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 judgements and other relevant

matters. Explanation: For the purpose of this

rule Judicial Officers means “District Judge or

Civil Judge (Senior Division) or Civil Judge

(Junior Division), belonging to the Karnataka

Judicial Service.”

The extension of the age of superannuation for all

Government servants to 60 years in the State in the year

2008 automatically brought about a parity between the

-: :-50

Judicial Officers and Government servants in the State.

Consequently Rule 95A was omitted with effect from

18.12.2008. It is significant to note that the modified

direction in the second of the All India Judges’ Assn. was

made having regard to the fact that the age of retirement of

Government servants was 55 or 58 as the case may be in the

States but for Judicial Officers it was fixed at 60 years.

Therefore the assessment prior to the age of 58 years was

made in order to ascertain as to whether the Judicial

Officers could be continued till 60 years. With the State

Government increasing the age of superannuation to 60

years for all Government servants across the board, a

question would arise as to whether the age of retirement at

60 years for Judicial Officers is still not automatic and would

depend on their crossing the efficiency bar. However, we

express no opinion on that aspect as in these cases we are

concerned with compulsory retirement in terms of Rule 285

of the KCSR except re iterating what has been said by the

Apex Court in Bishwanath Pratap Singh that the said

evaluation at 58 years is an ad hoc measure to be adhered to

-: :-51

till the amendment is made to the service Rules extending

the age of superannuation of Judicial Officers to 60 years.

What is significant as far as State of Karnataka is concerned

is that the age of superannuation has been enhanced to 60

years en masse.

29. But the Apex Court while enhancing the age to

60 years however made it clear that the age of retirement of

the subordinate Judicial Officers was extended up to 60

years and that an evaluation ought to be made before the

officer attains the age of 58 years by following the procedure

for compulsory retirement under the relevant Service Rules

applicable, for the purpose of evaluation. But, the said

evaluation is in addition to and independent of the

assessment for compulsory retirement that may have to be

undertaken under the relevant Service rules, at an earlier

stage/s. Therefore evaluation for the purpose of continuing

a Judicial Officers beyond 58 years is distinct from

considering whether a Judicial Officers should be

compulsorily retired from service in public interest, even

though the nature and procedure of evaluation is identical.

-: :-52

Therefore it becomes clear that assessment is for the

purpose of continuing a Judicial Officer beyond 58 years.

Such an understanding is apparent by the fact that Rule

95A was inserted to KCSR pursuant to the dictum in the

second of the All India Judges Assn. and was subsequently

deleted on 18.12.2008, on raising the age of superannuation

for Government servants including Judicial Officers to 60

years in the State. Moreover even when Rule 95A was on the

Rule book, exercise of power under Rule 285 under which

the respondent officers are compulsorily retired was

prevalent. Indeed Rule 285 has been invoked prior to as well

as subsequent to the decisions in All India Judges Assn. and

is de hors the dicta in the said case which essentially raised

the age of superannuation of Judicial Officers to 60 years

throughout the country, amongst other directions. Thus the

exercise of power under Rule 285 is distinct from the

evaluation of the Judicial Officers for the purpose of

continuing them beyond the age of 58 years. Moreover such

an evaluation according to the Apex Court was to be made as

an ad hoc arrangements till an amendment was made to the

-: :-53

service Rules enhancing the age of superannuation to 60

years by the states and the Union Territories. As far as the

State of Karnataka is concerned the enhancement of the age

of superannuation to 60 years has been made for the

Government servants as well as for Judicial Officers.

Therefore the validity of the exercise of power under Rule

285 has to considered in the present cases, keeping in mind

the aforesaid background and de hors the enhancement of

the age of superannuation of Judicial Officers to 60 years.

30. Thus, the controversy in these appeals is with

regard to the retirement of a Judicial Officer on attaining the

age of 50 or 55 years as contemplated under sub-rule (4) of

Rule 285. In the instant case, the impugned Notification has

invoked sub-rule (4) of Rule 285 of the KCSR. Rule 285 is in

Section V of the KCSR deals with pension on retirement and

the same reads as follows:

“[285. (1) Retiring Pension.- A retiring pension is

a pension granted to a Government servant.-

(a) who is permitted to retire any time after

completion of a qualifying service of not less

-: :-54

than [15 years,] subject to the conditions

specified in sub-rule (2) hereunder; or

(b) who is permitted to retire any time on

attaining the age of 50 years, subject to the

conditions specified in sub-rule (3) hereunder; or

[(c) who is retired in public interest any time

after completion of 20 years qualifying service or

after he has attained the age of 50 years, subject

to sub-rule (4) thereunder.]

285 (2) XXXXXX

285 (3) XXXXXX

“(4) Retirement of a Government servant in

public interest under the orders of Government.-

[(i) Government may, by order, retire a

Government servant who is working in a

substantive, quasi-permanent or temporary

capacity, after he has attained the age of 50

years or after he has completed 20 years of

qualifying service, if the retirement is in their

opinion necessary in the public interest:

Provided that the Government servant

concerned shall either be given a notice of three

months before the date of retirement or if he is

ordered to retire forthwith, be permitted to draw,

every month in lieu of pension for the period of

three months, from the date of such retirement,

-: :-55

a sum equivalent to the salary which he was

drawing immediately before the date of

retirement and any increment which accrues to

him during the said period shall be paid to him

and the said period for which he draws such

salary shall be treated as duty.]

(ii) Salary for this purpose will include

[special allowance], dearness allowance, house

rent allowance, city compensatory allowance,

uniform allowance, deputation allowance,

foreign service allowance and any other

allowance, except conveyance allowance and the

fixed travelling allowance. If the service of the

Government servant who is on deputation or on

foreign service for a specified period on specified

terms and conditions, are withdrawn to his

parent department before orders are passed

under this sub-rule, no deputation or foreign

service allowance will be paid.

(iii) Retirement under this sub-rule is

not permissible after, issue of an order under

clause (c) of Rule 95 of the Rules.

(iv) Orders retiring a Government

servant under this sub-rule, any time after his

completion of [20] years of qualifying service

shall not be issued until after the fact that he

has put in a qualifying service of not less than

-: :-56

[20] years has been verified in consultation with

the Accountant General.

(v) The quantum of pension and death-

cum-retirement gratuity admissible to a

Government servant, who is retired under this

sub-rule shall be proportionate to the length of

his qualifying service and calculated in

accordance with the provisions of Chapter XIX of

the Rules.

(vi) The amount of pension/gratuity to

be granted shall be subject to the right of the

Government or any Competent Authority to

make reduction therein in accordance with the

provisions of the rules, if his service is not

satisfactory.

(vii) The provisions of this sub-rule shall

come into force from the date of their publication

in the Official Gazette.]”

Sub–rule (1) deals with three kinds of retirements

namely,

a) a Government servant who is permitted to retire any time

after completion of a qualifying service of not less than 15

years subject to conditions specified in sub-rule (2).

-: :-57

b) a Government servant who is permitted to retire any time

on attaining the age of 55 years, subject to the conditions

specified in sub-rule (3).

(c) a Government servant who is retired in public interest

any time after completion of 20 years qualifying service or

after he has attained the age of 50 years, subject to

sub-rule (4).

The first two kinds of retirements are at the instance of the

Government servant while the third kind is at the instance of

the Government. However as observed above the scheme of

retirement contemplated under sub-rule (4) of 285 is quite

distinct from retirement on attaining the age of

superannuation or compulsory retirement by way of penalty.

31. Under sub-rule (4) of Rule 285, a Government

servant could be retired in public interest if he has attained

the age of 50 years and has completed 20 years of qualifying

service, if in the opinion of the Government, retirement is in

the public interest. Under the proviso, the Government

servant shall be given notice of three months before the date

-: :-58

of retirement or if he is ordered to retire forthwith, be

permitted to draw, every month in lieu of pension for the

period of three months from the date of such retirement, a

sum equivalent to the salary which he was drawing

immediately before the date of retirement and any increment

which accrues to him during the said period shall be paid to

him and the period for which he draws such salary shall be

treated as duty. Therefore, salary and other allowances in

lieu of three months notice are contemplated under the

proviso where the retirement is ordered forthwith. Therefore,

the conditions for invoking sub-rule (4) of Rule 285 are as

follows:

a) The Government servant must have attained the

age of 50 years or has completed 20 years of

qualifying service;

b) An opinion must be formed that the retirement of

the Government servant is in public interest;

c) The Government must pass an order retiring the

public servant in public interest and

-: :-59

d) Either give a three month notice before the date of

retirement or if the order of retirement is to take

effect immediately, then salary and other

allowances in lieu of three months notice must be

paid and the said period will have to be treated as

duty.

32. In the third decision of All India Judges’

Association, while not accepting the recommendation of the

Justice Shetty Commission to increase the age of

superannuation from 60 to 62 years and having in mind the

backlog of vacancies, it was observed that the State in

consultation with the High Court could amend the Service

Rules to provide re-employment of the Judicial Officers till

the age of 62 years if there are vacancies on the cadre of

District Judge. The observations in the second decision were

left untouched. Pursuant to the modified direction in the

second of the cases, what becomes clear is the fact that

compulsory retirement could be at two stages, 1) at the stage

of considering whether the Judicial Officers is eligible for

continuation from 58 to 60 years which is by way of an

-: :-60

ad hoc arrangement till the service Rule is amended to raise

the age of superannuation to 60 years and 2) compulsory

retirement in terms of the relevant Service Rules. Of course,

while considering the eligibility for continuation of a Judicial

Officers up to 60 years, the consideration is also under the

newly inserted Rule 95A of the KCSR.

33. As far as the State of Karnataka is concerned,

the KCSR is applicable to the Judicial Officers also. Also

there are no separate Rules of Retirement made applicable to

the Judicial Officers in the State. As observed above Rule

95A was added to KCSR pursuant to the decision in All India

Judges’ Assn. and the same was deleted when the age of

superannuation was raised to 60 years in the State.

Therefore, the consideration to be made just prior to 58

years for the purpose of continuing or not continuing such

an officer upto 60 years is now rendered otiose. Hence, it is

under Rule 285 itself that the case of the Judicial Officers

has to be considered and in terms of sub-rule (4) of Rule 285

of KCSR compulsory retirement in public interest is

envisaged. Also, it would be relevant to rely upon the

-: :-61

decisions of the Division Bench of this Court in the case of

Rajagopal Gangadhar Sajekhar v. High Court of

Karnataka [ILR 2001 Kar. 29] and in G.V.Naik vs. State

of Karnataka and Another [ILR 2000 Kar. 881], wherein,

the applicability of sub-rule (4) of Rule 285 for a compulsory

retirement of a Judicial Officers in public interest has been

affirmed. Such a consideration can also be on completion of

50 or 55 years of age as the case may be or on completion of

20 years of service. Therefore the contention that on the

deletion of Rule 95A, the concept of compulsory retirement

in public interest is obliterated from the Rule book is

incorrect. As stated above, the evaluation under Rule 95A

and Rule 285 are for different purposes though the manner

of evaluation is similar. Thus compulsory retirement in

public interest under Rule 285 was in vogue prior to the

decisions in All India Judges’ Assn. and continues to be

invoked even after the deletion of Rule 95A of the KCSR

which was introduced pursuant to the decision in the first of

the All India Judges’ Assn. It is needless to mention that

both Rule 285 as well as Rule 95A could have been invoked

-: :-62

in the case of a Judicial Officers in the state prior to the

deletion of Rule 95A. Thus the deletion of Rule 95A has

made no impact on the invocation of Rule 285.

34. In this context, the contention of the

respondents is that as far as Government servants are

concerned, there are guidelines in the form of instructions

whereby, the screening committee reviews the performance

of the Government servants and on the recommendation of

the screening committee, the Government servant would be

retired from service in public interest, when it is not

desirable to continue a Government servant any longer. But

in the case of Judicial Officers, such safeguards are

conspicuous by their absence and therefore the exercise of

power in the instant case is arbitrary.

35. As far as the respondent Judicial Officers are

concerned, a Screening Committee of the High Court

constituted to screen the Judicial Officers for the purpose of

continuation of service beyond 58 years was also entrusted

with the screening of the Judicial Officers in terms of sub-

-: :-63

rule (4) of Rule 285. After considering the Confidential

Reports, work performance and over-all assessment of

efficiency, reputation as to integrity, honesty and impartiality

of the officers who had attained 50 or 55 years, the

Committee resolved that fifteen Judicial Officers ought to be

retired in public interest under sub-rule (4) of Rule 285.

Infact the consideration was of 121 Judicial Officers who had

attained the age of 50 years and 78 Judicial Officers who

had attained the age of 55 years. The resolution of the

Screening Committee was placed before the Full Court

meeting held on 25/04/2009. The Full Court on considering

the resolution of the Screening Committee along with the

work performance, confidential records, overall assessment

of efficiency, reputation as to integrity, honesty and

impartiality of the fifteen Judicial Officers, resolved that the

invocation of sub-rule (4) of Rule 285 was in public interest

and resolved to recommend to the Government accordingly.

Therefore, the procedure followed by the High Court in the

instant case is similar to the guidelines issued by the State

Government by way of instructions, vis-à-vis Government

-: :-64

servants, a copy of which was submitted by the learned

counsel for the respondents during the course of arguments.

36. Thus, what emerges is that invocation of sub-

rule (4) of Rule 285 has no nexus for the purpose of

screening the Judicial Officers who have attained the age of

58 years in order to ascertain as to whether they could be

continued up to the age of 60 years in terms of the dicta of

the All India Judges Assn. The said Rule is applicable to

evaluate the Judicial Officers on completion of 20 years of

qualifying service or on attaining the age of 50 years, as the

case may be. To reiterate, the age of superannuation was for

the first time increased to 60 years in terms of the decision

in the All India Judges’ Assn. case, on 13/11/1991, prior to

that the age of retirement was 58 years as far as the State of

Karnataka is concerned. It is only on account of the

increase in the age of superannuation in All India Judges

Assn., the modified direction in the second case became

applicable by which the screening and evaluation of the

Judicial Officers before he/she attains the age of 58 years

was mandated in terms of the newly inserted Rule i.e., Rule

-: :-65

95A of the KCSR as for the Judicial Officers in State is

concerned. However what has to be borne in mind is that

the screening for the purpose of continuation of the Judicial

Officers up to 60 years is not the same thing as the

assessment and evaluation to be made for the purpose of

compulsory retirement under the Rule 285. In the former, it

is in order to ascertain as to whether the Judicial Officers

could be continued up to 60 years whereas, in the latter, it is

to ascertain as to whether the Judicial Officers has to be

retired in public interest. Though the object of consideration

in both the cases is different, the manner of consideration is

the same. A Judicial Officers who is evaluated after 50 years

of age could once again be evaluated just prior to attaining

58 years of age having regard to the dicta in All India Judges

Assn. In fact in the case of Nawal Singh, Fundamental Rule

56 made applicable to Judicial Officers in the State of Uttar

Pradesh in the matter of compulsory retirement was upheld

by observing as follows:

“In these matters the High Court has

exercised its jurisdiction not only on the basis of

the directions issued by this Court in All India

-: :-66

Judges’ Assn. case but also in exercise of its

powers under Rule 56(c) which empowers it to

pass an order of compulsory retirement after an

employee attains the age of 50 years.

Therefore, there is no embargo on the

competent authority to exercise its power of

compulsory retirement under Rule 56 of the

Fundamental Rules. As stated above, we have

arrived at the conclusion that because of the

increase in retirement age, rest of the Rules

providing for compulsory retirement would not

be nugatory and are not repealed. Hence, it was

open to the High Court to follow the procedure

for exercising the power under Rule 56(c) and

the procedure prescribed in Explanation (2-A)

requires that such order should be in public

interest and the appointing authority may take

into consideration any material relating to such

officer. It inter alia provides that any entry in

service record against which a representation is

pending can be taken into consideration

provided that the representation against such

entry is also taken into consideration along with

the entry and to consider any report of the

Vigilance Establishment. This power was

exercised by the High Court. No doubt, the

Committees were constituted on the basis of the

-: :-67

directions issued by this Court in First All India

Judges’ Assn. case but at the same time, before

passing the order of compulsory retirement, the

High Court exercised its powers under the

Fundamental Rules and that is specifically

mentioned in the orders.”

37. Therefore, the learned Single Judge was not

right in holding that there could be no assessment of a

Judicial Officers prior to his reaching the age of 58 years and

that sub-rule (4) of Rule 285 could be invoked only at one

time, insofar the Judicial Officers is concerned and that is,

only for the purpose of ascertaining as to whether the

Judicial Officers could be continued beyond 58 years. The

enhancement of the age of superannuation in terms of the

judgments of the Supreme Court necessiating a screening of

the Judicial Officers prior to his attaining the age of 58 years

is an ad hoc arrangement and not as a substitution for the

evaluation of the Judicial Officers on completion of 20 years

of qualifying service or on attaining 50 years of age. Infact,

Judicial Officers who are assessed on completion of the age

of 50 years or 20 years of qualifying service and are

-: :-68

continued in service could have been once again assessed for

the purpose of continuing their service beyond 58 years and

up to 60 years as per the dicta of the Apex Court as the

object of the said assessments are different as stated above,

till the amendment made to the service Rule enhancing the

age of superannuation to 60 years on acceptance of the

decision of the Apex Court which initially raised the said age

to 60 years.

38. It is also significant to observe that since the

State of Karnataka has enhanced the age of superannuation

for all Government servants to 60 years, which would also

include the members of the subordinate judiciary, the

screening prior to attainment of 58 years for the purpose of

continuing the officer till 60 years would in our view now be

unnecessary. In such a changed scenario, the evaluation

made in terms of Sub-Rule (4) of Rule 285 on attaining the

age of 50 years or on completion of 50 years of age assumes

greater significance. In these cases of course the evaluation

of the officers was on completion of 50 or 55 years of age or

20 years of qualifying service as the case may be for the

-: :-69

purpose of compulsory retirement which is an aspect of

control of the subordinate judiciary under Article 235 of the

Constitution, which vests administrative control over the

subordinate judiciary in the High Court. If compulsory

retirement is by way of a punishment or a penalty inflicted

on a Government servant, then in that case, it is consequent

upon a finding of guilt being recorded in Disciplinary

Proceedings. The relevant Rules and procedures would apply

involving the Principles of Nature Justice. Such compulsory

retirement must meet the requirements of Article 311 of the

Constitution. But a retirement as contemplated under sub-

rule (4) of 285 of KCSR is not by way of a punishment or

penalty and it does not cast any stigma. The object of

invocation of such a provision is as often stated, “to

eliminate the deadwood, the paper logged and callous”. It is

not by way of a punishment and as stated in Rajendra Singh

Verma, the order is passed on the subjective satisfaction of

the Government. The Principles of natural justice have no

place in the exercise of such power and such an order of

compulsory retirement cannot be lightly interfered with by

-: :-70

the Constitutional Courts. Therefore invocation of Rule 285

of KCSR is valid. Therefore point No.1 is answered in favour

of the appellants.

39. As far as a remedy being available to assail an

order of compulsory retirement the Apex Court in Rajendra

Singh Verma has observed as follows:

“41. Normally, an aggrieved civil servant

can challenge an order of compulsory retirement

on any of the following grounds, namely, (a) that

the requisite opinion has not been formed, or (b)

that the decision is based on collateral grounds,

or (c) that it is an arbitrary decision. If the civil

servant is able to establish that the order of

compulsory retirement suffers from any of the

above infirmities, the court has jurisdiction to

quash the same.”

In the aforesaid decision reliance has been placed on

Baikuntha Nath Das. v. District Medical Officer, (1992)

2 SCC 299), wherein the Apex Court has laid down the

following firm propositions of law stated in para 34.

“34. The following principles emerge from the above

discussion:

-: :-71

(i) An order of compulsory retirement is not a

punishment. It implies no stigma nor any suggestion

of misbehaviour.

(ii) The order has to be passed by the Government

on forming the opinion that it is in the public interest

to retire a Government servant compulsorily. The

order is passed on the subjective satisfaction of the

Government.

(iii) Principles of natural justice have no place in the

context of an order of compulsory retirement. This

does not mean that judicial scrutiny is excluded

altogether. While the High Court or this Court would

not examine the matter as an appellate court, they

may interfere if they are satisfied that the order is

passed (a) mala fide or (b) that it is based on no

evidence, or (c) that it is arbitrary-in the sense that no

reasonable person would form the requisite opinion on

the given material; in short, if it is found to be a

perverse order.

(iv) The Government (or the Review Committee, as the

case may be) shall have to consider the entire record of

service before taking a decision in the matter – of

course attaching more importance to record of and

performance during the later years. The record to be

so considered would naturally include the entries in

the confidential records/character rolls, both

favourable and adverse. If a Government servant is

-: :-72

promoted to a higher post notwithstanding the adverse

remarks, such remarks lose their sting, more so, if the

promotion is based upon merit (selection) and not

upon seniority.

(v) An order of compulsory retirement is not liable

to be quashed by a court merely on the showing that

while passing it uncommunicated adverse remarks

were also taken into consideration. That circumstance

by itself cannot be a basis for interference.

Interference is permissible only on the grounds

mentioned in Principle (iii) above.”

In Rajendra Singh Verma, the Apex Court has

elucidated on the manner of consideration of the service

record and performance of a Judicial Officers by stating that

before exercise of the power to retire an employee

compulsorily from service, the authority has to take into

consideration the overall record, even including some of the

adverse remarks, which though for technical reasons, might

have been expunged on appeal or revision. What is

emphasised in the said decision is that in the absence of any

mala fide exercise of power or arbitrary exercise of power, a

possible different conclusion would not be a ground for

interference by the court/tribunal in exercise of its power of

-: :-73

judicial review. According to the Apex Court, what is needed

to be looked into is whether a bonafide decision is taken in

the public interest to augment efficiency in the public

service.

In Union of India v. V.P.Seth, (1994 SCC (L&S)

1052), it has been held that uncommunicated adverse

remarks can be taken into consideration while passing the

order of compulsory retirement. The Bench in the said case

made reference to Baikuntha Nath Das.

The Apex Court in Rajendra Singh Verma has further

observed as follows:

“183. It is well settled by a catena of

decisions of this Court that while considering

the case of an officer as to whether he should be

continued in service or compulsorily retired, his

entire service record up to that date on which

consideration is made has to be taken into

account. What weight should be attached to

earlier entries as compared to recent entries is a

matter of evaluation, but there is no manner of

doubt that consideration has to be of the entire

service record. The fact that an officer, after an

earlier adverse entry was promoted does not

-: :-74

wipe out earlier adverse entry at all. It would be

wrong to contend that merely for the reason that

after an earlier adverse entry an officer was

promoted that by itself would preclude the

authority from considering the earlier adverse

entry. When the law says that the entire service

record has to be taken into consideration, the

earlier adverse entry, which forms a part of the

service record, would also be relevant

irrespective of the fact whether the officer

concerned was promoted to higher position or

whether he was granted certain benefits like

increments, etc.

* * * *

“192. Normally, the adverse entry

reflecting on the integrity would be based on

formulations of impressions which would be the

result of multiple factors simultaneously playing

in the mind. Though the perceptions may differ,

in the very nature of things there is a difficulty

nearing on impossibility in subjecting the entries

in the confidential rolls to judicial review.

Sometimes, if the general reputation of an

employee is not good though there may not be

any tangible material against him, he may be

compulsorily retired in public interest. The duty

conferred on the appropriate authority to

-: :-75

consider the question of continuance of a

Judicial Officers beyond a particular age is an

absolute one. If that authority bona fide forms

an opinion that the integrity of a particular

officer is doubtful, the correctness of that

opinion cannot be challenged before courts.

When such a constitutional function is exercised

on the administrative side of the High Court, any

judicial review thereon should be made only with

great care and circumspection and it must be

confined strictly to the parameters set by this

Court in several reported decisions. When the

appropriate authority forms bona fide opinion

that compulsory retirement of a Judicial Officers

is in public interest, the writ court under Article

226 or this Court under Article 32 would not

interfere with the order.

193. While undertaking judicial review, the

Court in an appropriate case may still quash the

decision of the Full Court on administrative side

if it is found that there is no basis or material on

which the ACR of the Judicial Officers was

recorded, but while undertaking this exercise of

judicial review and trying to find out whether

there is any material on record or not, it is the

duty of the Court to keep in mind the nature of

-: :-76

function being discharged by the Judicial

Officers, the delicate nature of the exercise to be

performed by the High Court on administrative

side while recording the ACR and the

mechanism/system adopted in recording such

ACR.”

In Nand Kumar Verma V/s. State of Jharkhand

(2012) 3 SCC 580) the Apex Court has opined that when

an order of compulsory retirement is challenged in a

court of law, the court has the right to examine whether

some ground or material germane to the issue exists or

not. Although, the court is not interested in the

sufficiency of the material upon which the order of

compulsory retirement rests. It is also well settled that

the formation of opinion for compulsory retirement is

based on the subjective satisfaction of the authority

concerned but such satisfaction must be based on a valid

material. It is permissible for the Courts to ascertain

whether a valid material exists or otherwise, on which the

-: :-77

subjective satisfaction of the administrative authority is

based.

40. Having regard to the aforesaid parameters set

by the Apex Court, the present cases have to be

considered. In this context, while the contention of the

learned counsel for the respondents is that the order of

compulsory retirement is arbitrary as the requisite

guidelines have not been followed, on the other hand, the

contention of the learned Senior Counsel for the

appellants is that such a plea has not been raised at all

before the learned Single Judge. We have perused each of

the cases of the respondents independently. As stated

earlier, the Committee of Judges constituted by the Chief

Justice of the High Court deliberated on the service

record, the work performance etc., to assess the overall

assessment of the efficiency and reputation as to the

integrity, honesty and impartiality of the concerned

Judicial Officers and has resolved to retire the

-: :-78

respondent-officers invoking sub-rule (4) Rule 284 of the

KCSR. The said resolution along with the extracts from

the vigilance records, which was the basis for forming an

opinion by the Committee, were placed before the Full

Court meeting held on 25.04.2009. On a consideration of

the said details, extracted from the vigilance records of

each of the respondent-officers, the Full Court resolved to

retire the respondent-officers in public interest under

sub-rule (4) of Rule 284 of KCSR and accordingly,

recommended the same to the Government. The

particulars of the vigilance cases and disciplinary

enquiries of the respondent-officers are annexed to each

of the Memorandum of Appeal as Annexure-R4 to the

additional statement of objections filed by appellant No.2

herein before the learned Single Judge. We have perused

the same. We do not find that there is any arbitrary

exercise of the power in the instant cases. Of course, no

malafides have been attributed by the respondents. We

are of the view that the opinion formed by the High Court

-: :-79

is based on material considered by the Committee of

Judges as well as the Full Court.

41. However, the learned Single Judge has stated

that though there were several allegations of corrupt

practices against the concerned officers, these were not

taken to the logical conclusion by holding a departmental

enquiry. On the other hand, in the absence of there

being any departmental enquiry, the order of compulsory

retirement is punitive in nature. No doubt, there are

several allegations against each of the respondent-

officers, some of which have also been enquired into and

in some cases may have also resulted in certain minor

punishments. However, what has to be considered under

sub-rule (4) of Rule 285 is, as to whether in the opinion of

the High Court, the concerned officer has to be retired in

the public interest. It is not whether a departmental

enquiry has to be instituted against the respondent-

officers for the purpose of imposing a penalty. The entire

-: :-80

service record of the officers is considered in order to

assess their efficiency and suitability for continued

service or to compulsorily retire from service, those

persons who in the words of Apex Court are “deadwood

and callous” and do not have a utility to the judicial

system. Therefore, the desirability, utility and suitability

to continue the Judicial Officers in service or to retire him

from service in the public interest is a sole consideration.

Compulsory retirement in public interest is not the same

as compulsory retirement on a proven misconduct. Sub-

rule (4) of Rule 285 of the KCSR does not envisage the

conduct of an enquiry before an officer could be

compulsorily retired. As stated above, compulsory

retirement in the public interest is not punitive or by way

of punishment, but to ensure purity and efficiency in

judicial administration by compulsorily retiring those

officers who, in the opinion of the High Court have lost

their utility to serve the system. Therefore, the learned

Single Judge is not right in concluding that invocation of

-: :-81

sub-rule(4) of Rule 285 of the KCSR is a punitive

measure “a shortcut to avoid the departmental enquiry or

enquiries”. Such a thing is not envisaged under the said

Rule. On the other hand, we do not find that on the

material considered by the Committee of Judges as also

by the Full Court the opinion formed is either arbitrary or

unreasonable or based on insufficient or irrelevant

material or based on irrelevant considerations. The

subjective satisfaction arrived at by the Committee and

thereafter by the Full Court cannot be questioned by way

of judicial review by getting a different view substituted

for the one taken on the administrative side. In fact we

do not find any taint in the decision-making process

while exercising the power under Rule 285. Indeed the

exercise of power under the Rule for ordering the

compulsory retirement of the respondents is in public

interest. Therefore, Point No.2 is also answered in favour

of the appellants.

-: :-82

42. In this context, reliance could be placed on

Jugal Chandra Sichia V/s. State of Assam (2003) 4

SCC 59) wherein it has been held that it is open for the

court to interfere in an order of compulsory retirement in

public interest, only when such an order is placed on no

evidence or is totally perverse. In D.G.Shivacharana

Singh V/s. The State of Mysore (AIR 1965 SC 280),

while upholding Rule 285 of the KCSR (then MCSR) the

Supreme Court held that public interest is a matter for

the Government to consider. In Shivdayal Gupta V/s.

State of Rajasthan (2006 SCC (L&S) 1230) it has been

held that when on the basis of overall perusal of Annual

Confidential Reports (ACR) and overall assessment of

service record, the Review Committee found that the

continuance of an officer would be a liability to the

Department and adverse to the public interest and

recommended for his compulsory retirement, in the

absence of any allegation of malafide or non-application

of mind, the challenge to compulsory retirement has to be

-: :-83

rejected, as it is based on the subjective satisfaction of

the matter on the basis of the records placed before the

authority. In Chandra Singh V/s. State of Rajasthan

(2003 SCC (L&S) 951), Rule 53 of the Pension Rules

pertaining to compulsory retirement in public interest

was held to be applicable to Judicial Officers also. In the

said decision it has also been held that the Constitutional

power under Article 235 cannot be circumscribed by any

rule.

43. We also do not subscribe to the view

expressed by the Full Bench of the Andhra Pradesh High

Court in K.Veera Chary that compulsory retirement of a

Judicial Officers on attaining the age of 50 or 55 years

curtails his right to continue till he attains the age of 58

years and then 60 years and therefore, deprives the

officer of the chance of serving and getting is pay till he

attains superannuation as per law, is punitive in nature.

In fact, in Bishwaanath Prasad Singh the Apex Court has

-: :-84

held that the object of compulsory retirement is not to

punish or penalise but to weed out the worthless, who

have lost their utility for the administration of justice. In

fact the Full Bench, with respect, has misconstrued the

dicta in All India Judges’ Association and Bishwanath

Prasad Singh by stating that the said judgments do not

contemplate assessment and evaluation of the record of

an officer at the age of 50 or 55 years. On the other

hand, in the said judgments it is categorically stated that

the review at the age of 58 years for the purpose of

continuation till 60 years is distinct and independent of

compulsory retirement in public interest or by way of a

punishment as the case may be. The Full Bench opinion

also loses sight of the fact that the exercise of power is

ultimately traceable to Article 235 of the Constitution of

India. In fact, the understanding of Naval Singh by the

Full Bench is also not correct since in the said case, the

Apex Court has held that there was no embargo on the

competent authority to exercise its power of compulsory

-: :-85

retirement under Rule 56 of the Fundamental Rules

de hors the direction in All India Judges’ Association.

44. In the result, the notification dated

23.06.2009 is upheld. The direction of the learned Single

Judge regarding reinstatement of the concerned officers

with continuity of service with all consequential benefits

is set aside. Consequently, the appeals are allowed.

Parties to bear their own costs.

Sd/- CHIEF JUSTICE

Sd/- JUDGE

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