BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12/12/2008
CORAM
THE HONOURABLE MR.JUSTICE R.REGUPATHI
and
THE HONOURABLE MR.JUSTICE R.SUBBIAH
Writ Petition(MD)No.8155 of 2008
and
M.P.(MD)Nos.1 & 2 of 2008
R.Ravindran .. Petitioner
vs.
1.The State of Tamil Nadu,
Rep. by its Secretary,
Home Department,
Fort St.George,
Chennai-600 009.
2.The High Court of Judicature at
Madras,
Rep.by its Registrar General,
High Court,
Chennai - 600 014. .. Respondents
Prayer
Petition filed under Article 226 of the Constitution of India, for
the issuance of a Writ of Certiorarified Mandamus, to call for the records from
the 2nd respondent in its proceedings in ROC.No.2A/2007-Con.B2, dated 23.05.2007
and quash the same and consequently, direct the respondents to permit the
petitioner to continue in service till the age of 60 years.
!For Petitioner ... Mr.Issac Mohanlal
^For 1st Respondent ... Mr.R.Janakiramulu,
Special Government Pleader.
For 2nd Respondent ... Mr.G.Prabhu Rajadurai
:ORDER
(Order of this Court was made by
R.SUBBIAH,J.)
The writ petitioner was a Judicial Officer, who entered into the Judicial
service in the year 1980 as a Judicial II Class Magistrate and his service was
regularised by the Hon’ble High Court of Madras as Judicial II Class Magistrate.
Subsequently, the petitioner was promoted as Judicial I Class Magistrate in the
month of May 1988. Thereafter, he was recruited as District Munsif through the
Tamil Nadu Public Service Commission and he joined as I Additional District
Munsif, Erode on 09.11.1988. After going through the regular spell of
promotions, he reached the post of District Judge and attained the
superannuation on 31.05.2007 at the age of 58 years.
2.Now the grievance of the writ petitioner is that some of the Judicial
Officers who are all juniors to him have been granted extension beyond the age
of 58 years, till the age of 60 years. Though he had discharged his duties by
maintaining absolute dignity and devotion with integrity and disposed of large
numbers of cases in all branches of law his name was not considered for no
reasons. Hence, the petitioner has come forward by way of filing this present
writ petition with a prayer to issue a Writ of Certiorarified Mandamus, to call
for the records from the 2nd respondent in its proceedings in ROC.No.2A/2007-
Con.B2, dated 23.05.2007 and quash the same and consequently, direct the
respondents to permit the petitioner to continue in service till the age of 60
years.
3.Resisting the prayer of the writ petitioner, the Registrar General of
the High Court of Judicature at Madras filed a counter affidavit on behalf of
the 2nd respondent by raising the following grounds:
i)The petitioner was allowed to retire on superannuation by the impugned
order dated 23.05.2007, he had submitted his representation only on 29.04.2008
i.e., after 11 months from the date of superannuation. Even after the rejection
of the representation by the second respondent on 14.05.2008, he had waited for
about 3 months to file this present writ petition. Thus, totally, there is a
delay of about 15 months in approaching this Court. When considering the length
of service that may be available on extension, is only 24 months, the delay in
approaching this Court after 15 months is a delay of substantial nature.
Therefore, the writ petition has suffered by latches, which is not properly
explained by him.
ii)The annual confidential reports of the petitioner for the last five
years would disclose that there were adverse remarks with reference to the
disposal of cases and he was found wanting in achieving the norms etc., In spite
of communication of the adverse remarks entered against him in his annual
confidential reports, he did not show any interest to set right his position.
iii)There were various complaints of corruption and favouritism received
against the writ petitioner by the Vigilance Cell of the High Court. However,
most of them have been ordered to be closed as “no further action was
warranted”.
iv)The seniority of an Officer is not a criterion, the Administrative
Committee in its wisdom and discretion analysed the records of each of officers
who were attaining the age of superannuation at the age of 58 years as on
31.05.2007 and 30.06.2007 respectively and reviewed for their continuance in
service beyond the age of 58 years and upto 60 years or otherwise.
v)The decision not to extend the service of the petitioner is not a stigma
and the petitioner cannot be aggrieved by such a decision.
4.Learned counsel for the petitioner submits that though the juniors to
the petitioner were granted extension beyond the age of 58 years, the name of
the petitioner has not been considered for extension for no reason. The
representation dated 29.04.2008 made by him for extension permitting him to
continue in Tamil Nadu State Judicial Service upto 60 years was also rejected by
the second respondent merely stating that “the representation submitted by him
considered by the High Court and the same has been rejected”. The Administrative
Committee has not considered the extension of the writ petitioner on the main
reason that there is a short fall in the disposal of the cases and complaints
with regard to the corruption as entered in the annual confidential reports of
the writ petitioner. In this regard, learned counsel for the petitioner by going
through the contentions made in the counter, pointed out that even in the
counter affidavit filed by the second respondent, it has been mentioned that the
petitioner had not reached the norms in the year 2002, so far as the rest of the
years of service are concerned which ought to have been taken into consideration
was not found out as against the petitioner. Similarly, it was further contended
by the learned counsel for the petitioner that it has been admitted by the
second respondent in the counter that the complaints of corruption and
favouritism received against the petitioner by the Vigilance Cell of the High
Court have been ordered to be closed as “no further action was warranted” and
under such circumstances, the case of the petitioner should have been considered
for extension.
5.In this regard, learned counsel for the petitioner made reference to a
judgment of the Supreme Court in W.P.(Civil)No.1022 of 1989 (All India Judges’
Association Vs. Union of India and others) reported in 1992 (1) SCC 119 wherein
guidelines were issued with regard to the retirement age of judicial officers to
60 by December 1992.
6.Learned counsel for the petitioner has also made reference to the
judgment reported in 1993 (4) SCC 288 (All India Judges’ Association and others
Vs. Union of India and others) wherein it has been held that the benefit of
extension to those who, in the opinion of the respective High Courts, have a
potential for continued useful service. The potential for continued utility
shall be assessed and evaluated by appropriate Committees of Judges of the
respective High Courts constituted and headed by the Chief Justices of the High
Courts and the evaluation shall be made on the basis of the judicial officer’s
past record of service, character rolls, quality of judgments and other relevant
matters. Thus, by referring the above said judgments, learned counsel for the
petitioner has also admitted that the extension of service is not an automatic
but on the proper assessment of the Administrative Committees of the respective
High Courts with regard to the potential for continued useful services of the
officer.
7.Further, learned counsel for the petitioner brought to the notice of
this Court an order passed by this Court in W.P.No.16317 of 2007 by a Division
Bench of this Court which was filed by a Judicial Officer on the grounds similar
to that of the petitioner herein. In the said case, the Division Bench of this
Court, by going through the records of the writ petitioner therein, had come to
the conclusion that there was nothing adverse against the petitioner with regard
to his knowledge of law, quality of judgment, conduct inside and outside Court,
reputation (Honesty, integrity & impartiality) on the other hand, either good or
satisfactory. So far as the disposals of cases are concerned, nothing adverse
has been reflected in the character role except for a quarter of a year which
was taken into consideration at the time of granting him promotion to the higher
post. Thus, the Division Bench of this Court has come to the conclusion that no
ground had been made out on behalf of the respondent to justify the decision
dated 25.01.2007, and then remitted the case of the writ petitioner for
extension of his service beyond 58 years and thus allowed the prayer.
8.Learned counsel for the petitioner also contended that in the instant
case also out of five years which was taken into consideration only in the year
2002, there is a short fall of the cases, even the complaints made against the
petitioner were also ordered to be closed stating that “no further action was
warranted”. While that be so, the prayer of the petitioner ought to have been
considered for extension following the decision in W.P.No.16317 of 2007, dated
22.07.2008.
9.Per contra, learned counsel for the second respondent produced the
original records in respect of Judicial Officers inclusive of the petitioner for
their further continuation beyond the age of 58 years upto 60 years and
submitted that the perusal of the file would show that the petitioner did not
reach the norms and there is a short fall in disposal of cases by him and in
spite of the warning given by the High Court in the year 2001-2002 itself by
communicating the adverse remarks against him in his annual confidential report,
the writ petitioner did not show any interest to set right his position. That
apart, there were various complaints received against him by the Vigilance of
the High Court, and no doubt most of the complaints have been ordered to be
closed but however when the question of extension is concerned, the reputation
of the Judicial Officers plays a vital role in granting extension. Therefore,
the Administrative Committee has correctly considered the number of complaints
received by the second respondent as against the petitioner in assessing the
potential for continued useful service. Further, learned counsel for the second
respondent contended that the discretion of the Administrative Committee cannot
be questioned, unless there is a mala fide. In view of the adverse remarks
entered in the annual confidential report as against the petitioner, no
grievance can be entertained by the petitioner that the Administrative Committee
has not justly considered the extension of service in respect of the petitioner.
10.In this regard, learned counsel for the second respondent in support of
his submission relied upon a judgment reported in 1993 Supp(4) SCC 441 (Air Vice
Marshal S.L.Chhabra, VSM (Retd.,) Vs. Union of India and another) wherein a
direction was given to reconsider the appellant’s promotion to the post of Air
Vice Marshal in view of the fact that the adverse remarks have been expunged in
the year 1989. Thus, by relying upon the said judgment, the counsel for the
second respondent contended that in view of the adverse remarks, the extension
of service was correctly negatived by the second respondent.
11.It is further submitted that the scope of the judicial review of the
assessment of the Committee in the absence of any mala fide or arbitrariness is
very limited. In this regard, learned counsel has also relied upon a judgment
reported in 1989 Supp (1) SCC 221 (State Bank of Bikaner and Jaipur Vs. Jag
Mohan Lal) wherein the requisition for extension of service was rejected. Under
such circumstances, the scope of the judicial review of the assessment of the
Committee in the absence of any mala fide or arbitrariness is very limited. In
the above judgment, the Apex Court held as follows:
“9.It seems to us that the High Court has misconstrued the legal right
claimed by the respondent. The right to get extension of service beyond the age
of superannuation has received consideration of this Court in several cases. In
State of Assam Vs. Basanta Kumar Das (1973 (1) SCC 461), after reviewing almost
all the earlier decisions (Kailash Chandra V. Union of India (AIR 1961 SC 1346);
B.N.Mishra Vs. State of U.P (AIR 1965 SC 1567) and State of Assam Vs. Premadhar
(1970(2)SCC 211), this Court said:(SCR p.165: SCC p.467, paras 16 and 18)
A government servant has no right to continue in service beyond the age of
superannuation and if he is retained beyond that age it is only in exercise of
the discretion of the government……
The fact that certain persons were found fit to be continued in service
does not mean that others who were not so found fit had been discriminated
against. Otherwise, the whole idea of continuing only efficient people in
service even after they had completed 55 years becomes only meaningless”.
12.That apart, learned counsel for the second respondent has also relied
upon a judgment of this Court in S.Venkataraman Vs. Union of India rep.by Chief
of the Air Staff Indian Air Force Air Head Quarters (VB), New Delhi and 3 others
reported in 2003(1) CTC 594, wherein it has been held that refusal to engage or
extend period of service would not constitute stigma – nor it is an infraction
of privilege or amounts to punishment.
13.Thus, by relying upon the above judgments, learned counsel for the
second respondent submitted that granting of extension is purely a discretion of
the Administrative Committee based on their subjective satisfaction, unless
there is mala fide, and to the same cannot be questioned. In the instant case,
a perusal of the record would show that there are lot of complaints as against
the petitioner and in addition, there was a shortfall in disposal of the cases.
Under such circumstances, there is no justification in considering the prayer of
the writ petitioner.
14.Learned counsel for the second respondent has also contended that the
present writ petition is hit by latches because the petitioner was allowed to
retire on 23.05.2007 thereafter, he waited for about 11 months to submit his
representation on 29.04.2008. Secondly, even after the rejection of the
representation by the second respondent on 14.05.2008, he had waited for about
three months to file this writ petition without any acceptable reason,
explaining the delay. Considering the length of service that may be available on
extension is only 24 months, the delay in approaching this Court after 15 months
is a delay of substantial nature and this was not properly explained and on that
ground also the writ petition is liable to be dismissed.
15.By way of reply, learned counsel for the petitioner contended that the
judgments relied on by the learned counsel for the second respondent will not
apply to the facts of the present case since the issue involved in this present
writ petition is granting of extension of the Judicial Officer who attained the
age of superannuation at the age of 58 years. The judgments relied upon by the
learned counsel for the second respondent are in respect of promotion cases,
arising out of different circumstances, in respect of the other Governmental
Organisations and therefore, those decisions will not apply. Under such
circumstances, this Court can consider the case of the writ petitioner and allow
the prayer sought for by the writ petitioner.
16.We have heard the submissions made on either side and perused the
materials available on record.
17.On perusal of the original records filed by the Vigilance Cell of the
High Court pertaining to the writ petitioner are as follows:
Place of Work ROC.No. Complainant Allegation Result/Remarks PDJ, Pudukottai506/2005 Public of Corruption No action/CJ Pudukottai /28.03.2006
PDJ, Pudukottai775/2005 & Sreenivasan,S.C. Corruption No further action
740/2005 Street, Andakulam
PDJ, Pudukottai916/2005 (unsigned)
414/2006 S.M.d.Yusouf Corruption No action/CJ
(2nd copy) /29.08.2006
PDJ, Pudukottai285/2006 M.P.Muthuveerayan, Corruption Registrar(V) to
C.138/06 Alangudi hold Discreet
Enquiry/CJ/27.09.06
DJ, Dindigul 692/2006 Court Corruption No Action/CJ
Investigation /18.12.2006.
Branch, Dindigul
DJ, Dindigul 777-A/2006 Rajeswaran, Favouritism No action
Liberation /CJ/3.1.2007
Panthers Party
DJ, Dindigul 149/2007 & General Public Corruption Pending Orders
128/2007 Advocates, Dindigul
18.Similarly with regard to the disposal of the cases also, we find that
there is a short fall. It is no doubt that the complaints are ordered to be
closed stating that no further action is warranted so far as the extension of
service is concerned, the complaints received as against an Officer plays a
vital role to decide the potential for continued useful service as held by the
Apex Court in 1993 (4) SCC 288 (All India Judges’ Association and others Vs.
Union of India and others). In the instant case, the complaints received against
the writ petitioner seems to be in plurality. So far as the writ petition in
W.P.No.16317 of 2007 as decided by this Court, the position is not similar to
that of the writ petitioner herein. It is a basic principle that each case has
to be decided based on the facts and circumstances of each case. So far as this
case is concerned, we do not find any justification in accepting the prayer of
the writ petitioner in view of the number of complaints received against the
petitioner. Similarly, we also find that there was a delay of 15 months in
filing writ petition. The writ petitioner even by way of extension, is eligible
to get only further period of two years. Under such circumstances, the
petitioner ought to have filed the writ petition at the earliest point of time
and he waited almost the period of 11 months to file the representation which
was rejected on 14.05.2008. Thereafter, he waited for another three months and
filed this present writ petition. The admission of the writ petitioner clearly
shows that he is making effortless attempt to take his chance and the delay was
not properly explained in approaching this Court. Under such circumstances, we
feel that there is no proper explanation from the side of the writ petitioner
for filing the writ petition belatedly, on this ground also the writ petition
has to fail. Similarly, we find no stigma in not extending for his extension of
service as held by this Court in S.Venkataraman Vs. Union of India rep.by Chief
of the Air Staff Indian Air Force Air Head Quarters (VB), New Delhi and 3 others
reported in 2003(1) CTC 594. Looking at in any angle, no case has been made out
by the petitioner warranting this Court to allow the prayer made in the writ
petition. Hence, the writ petition is dismissed. No costs. Consequently,
M.P.(MD) Nos. 1 and 2 are closed.
sms
To
1.The Secretary,
Government of Tamil Nadu,
Home Department,
Fort St.George,
Chennai-600 009.
2.The High Court of Judicature at
Madras,
Rep.by its Registrar General,
High Court,
Chennai – 600 014