ORDER
Dr. Mukundakam Sharma, J.
Rule. As the parties are represented by their counsel and relevant records have been placed before me by both the parties, I proceed to dispose of the writ petition after hearing the counsel appearing for the parties.
1. In this writ petition the petitioner has challenged the legality of the notification dated 10.4.2000 issued under the signature of the Registrar (Admn.) of the Supreme Court of india retiring the petitioner from service in public interest w.e.f. 4.4.2000 on his attaining the age of 57 years. The said order was passed in exercise of powers conferred by clause (j) of Rule 56 of the Fundamental Rules.
2. The petitioner was initially appointed in the Registry of the Supreme Court as Senior Stenographer on 25.7.1970. The petitioner served in the Registry in different capacities and was promoted as Officiating Joint Registrar by an order dated 29.4.1997. While serving as such the petitioner received a memorandum dated 6.4.1998 by which the petitioner was communicated the remarks “An average Worker”. On receipt of the aforesaid communication the petitioner submitted a representation on 12.5.1998. However, the said representation of the petitioner was rejected by the Supreme Court of India under memorandum dated 12.11.1998. On attaining the age of 55 years the question of continuance or otherwise of the services of the petitioner beyond the age of 55 years was continuance or otherwise of the service of the petitioner beyond the age of 55 years was considered by the Supreme Court under Rule 56(j) of the Fundamental Rules and the matter was placed before the concerned Committee comprising of two Judges of the Supreme Court for the purpose of review. The Committee recommended the case of the petitioner for continuation beyond the age of 55 years which was approved by the Chief Justice of India, and accordingly, the petitioner continued in service beyond the age of 55 years.
3. In terms of the existing policy the case of the petitioner for continuation or otherwise beyond the age of 56 years was again placed before the Committee consisting of two Judges of the Supreme Court to undertake a review. The Committed constituted for the purpose looked to the confidential reports dossier, special report and a tabular statement for the purpose of assessment of the performance of the petitioner and the committee recommended continuation of the petitioner beyond the age of 56 years. However, in terms of the observation made by one of the members of the Committee that he should improve if he is to be continued any further, the Chief Justice of India passed the order allowing the petitioner to continue in service of the Registry of the Supreme Court beyond the age of 56 years with a stipulation that he might be told to show improvement in his performance. The said order was also conveyed to the petitioner. The petitioner thereafter attained the age of 57 years and therefore, the question of his continuation or other wise in service beyond the said age was placed before the committee for the purpose of review. On consideration of the entire records and after discussion the Committee decided that the services of the petitioner could not be continued beyond the age of 57 years. The said recommendation of Committee was placed before and approved by the Chief Justice of India. Pursuant thereto the aforesaid order retiring the petitioner from service under rule 56(j) was issued by the Registrar of the Supreme Court of India, the legality of which is challenged in the present writ petition.
4. The petitioner appearing in person submitted before me that the performance of the petitioner was good and up to the mark and therefore, no decisions could have been taken to retire the petitioner from service under the provisions of Rule 56(j) of the Fundamental Rules. It was also submitted that the procedure followed by the Registry in making review of the cases of the petitioner every year is foreign to the provision of Rule 56(j) and that the petitioner having been found fit to be continued in service on attaining the age of 55 years there could have been no further review in law of his case on attaining the age of 56 & 57 and therefore, the action on the part of the respondent in retiring the petitioner on review of his case on attainment of 57 years is bad in law. The petitioner further submitted that no public interest was involved in the present case and therefore, the purported exercise of power in public interest is illegal and without jurisdiction.
5. It was also submitted that the Supreme Court cold not have reframed the provision of the Legislation namely – FR. 56(j) as it has no power to legislate and whatever action was required to be taken the same should have been taken strictly within the parameters of rule 56(j) and thus the action taken going beyond the parameters of rule 56(j) is illegal and void.
6. On the other hand the Additional Solicitor General appearing for the Supreme Court of India while refuting the aforesaid allegations has drawn my attention to the provisions of Article 146(2) of the Constitution of India and also to the provision of Rule 9 of the Supreme Court Officers and Servants (Conditions of Service and Conduct) Rules framed in exercise of powers under Article 146(2) of the Constitution of India. He also placed the relevant policy framed by the Chief Justice of India with regard to review of cases of the officers and servants of the Supreme Court for the purpose of their continuance or otherwise every year after attaining the age of 55 years. He submitted that the impugned order was passed strictly in accordance with law and in the light of service records of the petitioner.
7. Articles 146(2) of the Constitution of India provides that subject to the provision of any law made by the Parliaments the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Jude or officer of the Court authorised by the Chief Justice of India to make rules for the purpose. A proviso is added to the aforesaid provisions which lays down that the rules made under the said clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President.
8.The aforesaid, provision, therefore, empowers the Chief Justice of India or his authorised nominee to make rules regarding the conditions of services of officers and servants of the Supreme Court which is however, subject to the provisions of any law mad by the Parliament. A rider is however, added thereto that in case any such condition of service in respect of which rules are framed in exercise of the powers under article 146(2) relating to salaries, allowances, leave or pension the same would require the approval of the President. The reason of the same is not far to seek, for such conditions like salaries, allowances, leave or pension involve financial implications and therefore, the approval of the President of India is made necessary.
9. So far as compulsory retirement is concerned a specific law has been made in the nature of FR. 56(j) which reads as follows:
“Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any government servant by giving him notice of not less than 3 months in writing or 3 months pay and allowances in lieu of such notice.”
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The aforesaid provision is applicable to Central Government employees. Since no such specific provision is made with regard to the officers and employees of the Supreme Court of India, by virtue of Rule 9 of the Rules the provisions of rule 56(j) would be applicable to those officers and employees of the Supreme Court of India.
10. A policy has been framed by the Supreme Court of India laying down that all cases to continue in service beyond the age of 55 years shall be reviewed every year by adopting the time schedule for the review. In terms of the aforesaid policy the case of the officers of the rank of Joint Registrar and above for continuation or otherwise in service after having attained the age of 55, 56 and 57 years are to be reviewed by a Committee comprising of two Judges of the Supreme Court and the recommendations made by the said committee and required to be placed before the Chief Justice of India, who is to pass a final order. Subsequently, when the age of retirement was raised to the age of 60 years further review on attaining the age of 58 and 59 year is made necessary. In terms of the aforesaid provision of Rule 56(j) of the Fundamental Rules read with policy adopted by the Supreme Court of India for dealing with the question of continuation or otherwise of the officers of the Supreme court of India in service, the case of all the officers are reviewed by the aforesaid committee constituted for the purpose every year by adopting the time schedule for the review. In terms of the said policy the case of the petitioner was also considered for review when he attained the age of 55 years when his services was recommended to be continued by the Committee beyond 55 years as per rules. The records of the petitioner were again placed before the said Committee constituted for the purpose for considering his case for continuance or otherwise beyond the age of 56 years. The Committee considered the up to date confidential reports dossier, special report and a tabular statement and after careful consideration of the case of the petitioner one of the members of the Committee while recommending the petitioner to continue in service beyond 56 years observed that the petitioner should improve if he is to be continued any further. The report of the said committee was placed before the Chief Justice of India who ordered that the petitioner could be continued in service of the Registry beyond the age of 56 years with a stipulation that he may be told to show improvement in his performance. The said order was communicated to the petitioner. A communication was issued by the Registry (Admn.) to the petitioner intimating the petitioner that the Chief Justice of India while reviewing the case for continuance of the petitioner in service beyond the age of 56 years had directed that the petitioner would be required to show improvement in his performance. The petitioner was, therefore, asked to show improvement in his performance. As against the aforesaid communication the petitioner submitted a representation wherein he contended that he was transferred to the Decree Section where there was huge pendency of 3/4 years and that the said pendency had been cleared by him and that still his performance had bene graded as “average”. In the said representation the petitioner requested that the entire matter be reviewed and re-considered afresh. In the meantime the petitioner attained the age of 57 years and accordingly, the matter regarding review of continuance or otherwise of the petitioner beyond the age of 57 years was required to be placed before the Committee and accordingly, necessary papers were prepared by the Registry of the Supreme Court and as per the policy decision the case of the petitioner for review for his continuance or otherwise in service beyond the age of 57 years was placed before the Committee constituted for the purpose. Along with the note prepared by the Registry his confidential Reports Dossier, special report and a tabular statement were also placed before the said committee. It is reflected from the said records that the petitioner was graded ‘average’ for the period ending 31.3.1996 and the said average grading was conveyed to him under memorandum dated 5.12.1996. As against the said grading the petitioner preferred a representation which after consideration was rejected by the Chief Justice of India under order dated 2.4.1997. The petitioner was again graded average for the period ending 31.3.1997 and the average grading was conveyed to him under memorandum dated 19.4.1997 and he was required to improve his performance and show greater sincerity and devotion to work and improve his efficiency. Similarly the petitioner was again graded average for the period ending 17.1.1998 by the Reporting Officer and on the basis of the said grading, the first Reviewing Authority attributed the remark “An average worker” and the said assessment has been agreed to by the final reviewing namely – the Chief Justice of India. The said remarks as recorded in his annual confidential report for the period ending 17.1.1998 was duly communicated to the petitioner vide memorandum dated 6.4.1998. A representation was submitted by the petitioner as against the aforesaid remarks in which he had inter alia taken the plea that during the period under review he had brought down the arrears in the Decree Section and no opportunity was given in writing cautioning his deficiency in work at an point of time during the year 1997-98 and all of a sudden he was conveyed the ‘Average’ grading.
11. The aforesaid representation was considered Along with the records and on such examination it was found by the Chief Justice of India that the representation had no merit and the same was accordingly rejected. All the aforesaid records were available before the Committee constituted for the purpose of review and considering the case of the petitioner regarding his continuance or otherwise in service beyond the age of 57 years. Having considered the records the Committee was of the opinion that the petitioner cannot be allowed to be continued beyond the age of 57 years, and in terms thereof the aforesaid impugned order was issued to the petitioner retiring him from service under FR.56(j) after the recommendation was approved by the Chief Justice of India. The original records were also placed before me, which I have perused and considered.
12. It was contended by the petitioner that rule 56(j) of the Fundamental Rules has not been adopted or incorporated by the Supreme Court and therefore, the said provisions cannot be made applicable in case of the officers of the Registry of the Supreme Court. Alternatively, the petitioner submitted that even assuming that the provision of rule 56(j) of Fundamental Rules is applicable, the same could be made applicable as it is and no addition/alteration thereto is permissible and therefore, When an assessment was done by the Supreme Court on attainment of the age of 55 years no further review on attaining the age of 56 & 57 years was permissible and therefore, the action taken against the petitioner for reviewing his case on attainment of 57 years of age was illegal and without jurisdiction.
13. In order to deal with the said contention it would be appropriate to refer to rule 9 of the Supreme court Officers and Servants (Conditions of Services and Conduct) Rules, 1961, hereinafter called the Conduct Rules and to extract the relevant part thereof:
9. Conditions of Services. – In respect of all such matter regarding the conditions of service of court servants for which no provisions or insufficient provisions has been made in these rules, the rules and order s for the time being in force and applicable to servants holding corresponding posts in the Government of India shall regulate the conditions of services of Court servants subject to such modifications, variations or exceptions if any, in the said rules and orders, as the Chief Justice may, from time to time, specify:
Provided that no order containing modification, variations or exceptions in rules relating to salaries, allowances, leave or pensions shall be made by the Chief Justice except with the approval of the President:
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14. By virtue of the aforesaid provision, rule 56(j) of the Fundamental Rules becomes applicable to the officers and Court Servants of the Supreme Court of India as no specific rule is framed in the aframesaid Conduct Rules with regard to compulsory retirement which is also a condition of service. The said applicability is however, subject to any modification, variation or exception, if any, as the Chief Justice may from time to time specify.
15. By virtue of the aforesaid provision, rule 56(j) applies to the Officers and Court servants working in the Supreme Court in India. In terms of the aforesaid rule also the Chief Justice of India is empowered to modify, vary and add to the rules by framing a policy guideline which is framed in the instant case providing for review of cases of the officers and servants on attainment of the age of 55, 56, 57,m 58 and 59 years. The rule also specifies that the power is to be exercised in the public interest. In Brij Mohan Singh Vs. State of Punjab, , it was held by the Supreme court that public interest in relation to public administration envisages retention of honest and efficient employees in services and dispensing with the services of those who are inefficient, dead wood, corrupt and dishonest and that the rule contemplates premature retirement of in inefficient, corrupt or dead wood which would subserve public interest. Therefore, the review of the case of the petitioner from year to year beyond the age of 55 years cannot be said to be illegal or without jurisdiction. The Committee considered the records and made on overall assessment with reference to the said records particularly giving stress on the confidential reports pertaining to three years immediately preceding such consideration. The said consideration was strictly in conformity with the observations made by the Supreme Court in paragraph 7 of the decisions in Brij Mohan Singh (supra). The Chief Justice of India agreed with the recommendation of the Committee consequent to which the impugned order was passed.
16. In a catena of decisions the Supreme Court has held that an order of compulsory retirement is neither stigmatic nor a punishment. No malafide is alleged in the present case and the only contention is that no power of review was vested after recommendation for continuation of service on attainment of 55 years of age. The decision in State of Uttar Pradesh Vs. Chandra Mohan Nagam and others, reported in AIR 1997 SC 2411 was relied upon on both the sides during the course of arguments. It was held in the said decision that when the rule itself does not contain any guidelines, directions or criteria the instructions issued by the Government furnish an essential and salutary procedure for the purpose of securing uniformity in application of the rule. These instructions really fill up the yawning gaps in the provision, and are embedded in the conditions of service. These are binding on the Government and cannot be violated to the prejudice of the Government Servant.
17. In suryakant Govind Oke Vs. State of Maharashtra, reported in 1995 (4) SLR 773 it was held by the Supreme Court that the opinion of the State that the appellant was not fit for continuance in service was based on a proper consideration of the materials on the record and that the remarks in the confidential record are of direct relevance. Since for the period 1981 to 1986 the appellant in the said case was rated “less than goods” for 4 years, it wash led that there was sufficient material available with the authorities to direct compulsory retirement of the appellant. Therefore, in the said case the Supreme Court found that if an employee was rated ‘less than good’ for 4 years the same could be construed as sufficient material to direct compulsory retirement of the appellant.
18. In the present case, the petitioner was rated as ‘average’ for 3 years which could be said to be almost equivalent grading to the remark ‘less than good’ and therefore, on the basis of the ratio laid down in the said decision, it is well established that in the present case also sufficient materials are available with the respondent to direct compulsory retirement of the petitioner.
19. Reference could also be made to the decision of the Supreme Court in Brij Mohan Singh Chopra Vs. State of Punjab (supra) wherein the object for compulsory retirement was spelt out as to weed out inefficient, corrupt, dishonest or dead wood from the government service. While however, laying down the same the Supreme court issued a note of caution that the said power of the Government shall be subject to service rules and constitutional limitations. It was also held in the said decision that in relation to compulsory retirement public interest means retention of honest and efficient employees and weeding out of inefficient and dishonest.
20. The honest of the petitioner was however not doubted in any of the records placed before me but with regard to efficiency of the petitioner he was rated only as an ‘average officer’ and as such the petitioner could not be said to be an efficient officer. Since the rule contemplates premature retirement, retirement of the petitioner on the ground of inefficiency, could be said to subserve the public interest.
21. In Post and Telegraphs Board and others Vs. C.S.N. Murthy, , a three Judges Bench of the Supreme court has held that subjective satisfaction of the reviewing authority is not open to court’s interference in absence of any malafide.
22. No malafide is alleged in the writ petition by the petitioner, and therefore, the satisfaction of the recommending committee and the approval of the said recommendation by the Chief Justice of India are their subjective satisfaction on the basis of the records available and the same cannot be said to be open to court’s interference. No arbitrariness nor any unreasonableness could be established by the petitioner and therefore, no interference is called for to the other of compulsory retirement of the petitioner.
23. In the result, I find no merit in this writ petition and the same stands dismissed. However, in the facts and circumstances of the case there will be no order as to costs.