# CHANDRA SINGH v. STATE OF RAJASTHAN AND ANR

- **Citation:** [2003] Supp. 1 S.C.R. 674
- **Court:** Supreme Court of India
- **Decided:** 2003-07-22
- **Case number:** Civil Appeal No. 5576 of2000
- **Bench:** V.N. Khare, S.B. Sinha, Dr. Ar. Lakshmanan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chandra-singh-v-state-of-rajasthan-and-anr-19219
- **Pages:** 24

## Headnote

Service Law:
c
Rajasthan Service Rules, 1951 (as amended and notified)-Rule 56Rajasthan Civil Service (Pension) Rules, 1996-Rule 53-Higher Judicial
,.
Service-Retirement-On attaining superannuation age-Rule 56 amended
by notification dated 27.6. 1998 raising retirement age to 60 years--Further,
by notification dated 28.12.1998 effective from 31.3.1999 retirement age
reduced to 58 years requiring government servants crossing 58 years to be
D retired on 31.3.1999, subject to the exception that the judicial officers
considered to have the potential for continued useful purpose by High Court,
retirement age would be 60 years-On facts, members attaining
superannuation age of 58 years before 31.3.1999, committee of High Court
finding that officer not possessing sufficient potentiality for extension of
E
service-Compulsory retirement order with effect from 31.3.1999Sustainability-Held: Retirement action illegal in view of rule 56 amended
by notification dated 27.6.1998-Extension of superannuation age would
not arise and also review ofperformance on attaining age of 58 years-High
Court could not have initiated a proceeding, prior thereto under Rule 56 as
amended by notification dated 28.12.1998 as the orders affecting substantive
F right could be made under such law only after it comes into force and not
in anticipation thereof-However, on basis of annual confidential reports not
a fit case where this court should exercise its discretionary jurisdictionFurther the continuation in service of persons of doubtful integrity not
desirable-Therefore, retirement not considered prima facie and per se as
punishment and they do not lose any part of their benefit earned during
G service-High Court and State Government directed to pay all retiral
benefits-Constitution of India, 1950-Articles 235, 226, 32 and 142.
In All India Judges' Association's case, while maintaining that the
normal age of superannuation of the judicial officers would be 60 years, it
H
was directed that a committee appointed by the Chief Justice of the High Court
674
J
~
-
CHANDRA SINGH v. STATE OF RAJAS THAN
675
would review the records of the members to find out their potentiality before A
they attain the age of 58 years and those not found suitable, would be made to
compulsorily retire at 58. Thereafter, the statutory rule governing the age of
superannuation were made. Rule 53 of Rajasthan Civil Services (Pension)
Rules, 1996, provided for pre retirement assessment after completion of25
years of qualifying service or attaining the age of 50 years, whichever is B
earlier. Rule 56A of the Rajasthan Service Rules amended by notification dated
20.2.1995 provided that the retirement age of judicial officers having potential
for continued useful purpose would be to 60 years, while for others it was 58
years. By notification dated 27.6.1998, retirement age was raised to 60 years
for all government servants. Further by amendment to Rule 56 by notification
dated 28.12.1998 effective from 31.3.1999 retirement age was reduced to 58 C
years with a proviso that all government servants crossing 58 years would be
retired on 31.3.1999, subject to the exception that for the judicial officers
considered to have the potential for continued useful purpose by the High
Court, the retirement age would be 60 years while for others it would be 58
years.
Appellants are the members of the Rajasthan Higher Judicial Service.
Appellant C was to attain age of 58 years on 12.3.1999, Bon 19.9.1998 and
Mon 4.1.1999. Committee of three Judges considered the case of several
officers including appellants for giving them benefit of extension up to the
D
age of 60 years. Committee found that the appellants did not possess sufficient E
potentiality and utility so as to give them the benefit of extension of service
up to the age of 60 years. Full Court approved the same. Appellants were
retired from service on attaining the age of superannuation with effect from
31.3.1999. Appellants challenged the retirement or

## Text

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A
CHANDRA SINGH
v.
STATE OF RAJASTHAN AND ANR.
JULY 22, 2003
B
[V.N. KHARE, CJ., S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.]
Service Law:
c
Rajasthan Service Rules, 1951 (as amended and notified)-Rule 56Rajasthan Civil Service (Pension) Rules, 1996-Rule 53-Higher Judicial
,.
Service-Retirement-On attaining superannuation age-Rule 56 amended
by notification dated 27.6. 1998 raising retirement age to 60 years--Further,
by notification dated 28.12.1998 effective from 31.3.1999 retirement age
reduced to 58 years requiring government servants crossing 58 years to be
D retired on 31.3.1999, subject to the exception that the judicial officers
considered to have the potential for continued useful purpose by High Court,
retirement age would be 60 years-On facts, members attaining
superannuation age of 58 years before 31.3.1999, committee of High Court
finding that officer not possessing sufficient potentiality for extension of
E
service-Compulsory retirement order with effect from 31.3.1999Sustainability-Held: Retirement action illegal in view of rule 56 amended
by notification dated 27.6.1998-Extension of superannuation age would
not arise and also review ofperformance on attaining age of 58 years-High
Court could not have initiated a proceeding, prior thereto under Rule 56 as
amended by notification dated 28.12.1998 as the orders affecting substantive
F right could be made under such law only after it comes into force and not
in anticipation thereof-However, on basis of annual confidential reports not
a fit case where this court should exercise its discretionary jurisdictionFurther the continuation in service of persons of doubtful integrity not
desirable-Therefore, retirement not considered prima facie and per se as
punishment and they do not lose any part of their benefit earned during
G service-High Court and State Government directed to pay all retiral
benefits-Constitution of India, 1950-Articles 235, 226, 32 and 142.
In All India Judges' Association's case, while maintaining that the
normal age of superannuation of the judicial officers would be 60 years, it
H
was directed that a committee appointed by the Chief Justice of the High Court
674
J
~
-
CHANDRA SINGH v. STATE OF RAJAS THAN
675
would review the records of the members to find out their potentiality before A
they attain the age of 58 years and those not found suitable, would be made to
compulsorily retire at 58. Thereafter, the statutory rule governing the age of
superannuation were made. Rule 53 of Rajasthan Civil Services (Pension)
Rules, 1996, provided for pre retirement assessment after completion of25
years of qualifying service or attaining the age of 50 years, whichever is B
earlier. Rule 56A of the Rajasthan Service Rules amended by notification dated
20.2.1995 provided that the retirement age of judicial officers having potential
for continued useful purpose would be to 60 years, while for others it was 58
years. By notification dated 27.6.1998, retirement age was raised to 60 years
for all government servants. Further by amendment to Rule 56 by notification
dated 28.12.1998 effective from 31.3.1999 retirement age was reduced to 58 C
years with a proviso that all government servants crossing 58 years would be
retired on 31.3.1999, subject to the exception that for the judicial officers
considered to have the potential for continued useful purpose by the High
Court, the retirement age would be 60 years while for others it would be 58
years.
Appellants are the members of the Rajasthan Higher Judicial Service.
Appellant C was to attain age of 58 years on 12.3.1999, Bon 19.9.1998 and
Mon 4.1.1999. Committee of three Judges considered the case of several
officers including appellants for giving them benefit of extension up to the
D
age of 60 years. Committee found that the appellants did not possess sufficient E
potentiality and utility so as to give them the benefit of extension of service
up to the age of 60 years. Full Court approved the same. Appellants were
retired from service on attaining the age of superannuation with effect from
31.3.1999. Appellants challenged the retirement order and the High Court
dismissed the writ petition. Hence the present appeals.
Appellants contended that they were entitled to continue in service till
they attained the age of 60 years, which right was vested in them under Rule
56 amended by notification dated 27.6.1998; that the said rule did not provide
F
for any pre-retirement assessment; that they could not have been retired after
they crossed the age of 58 years and before they attained the age of 60 years;
that the reliance on Rule 56 notified on 28.12.1998 is untenable as it was G
effective from 31.3.1999 and could not have provided for pre-retirement
assessment, prior thereto; that there is an "exception" clause in the rule
and the only construction possible is that the exception is intended to restrain
the applicability of the enacting clause to the excepted cases and that such a
construction alone would bring the rule in consonance with the judgment of H
676
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A this Court in All India Judges' Association cases; that the respondents have
not invoked the power under Rule 53 of the Pension Rules and the order of
23.3.1999 does not say so; that there can be no other mode of retirement for
judicial officer after he crosses the age of 58 years and before he attains the
age of 60; that the orders of 23.3.1999 are also not in conformity with the
B llnd All India Judges case that pre-retirement assessment should be made
well within the time before an officer attains 58 years by following the
procedure for compulsory retirement under the service rules; that the
c
expression "Government Servants" referred to in Rule 56 will not include
Judicial Officers; and that as M was facing a departmental inquiry, he cannot
be retired at the age of 58 years under the amended Rule 56.
Respondent No.1-Rajasthan High Court contended that the A// India
Judges' Association case will not apply to the instant case, once the statutory
rules governing the superannuation of members of judicial service as well as
extension of service are made; that neither the Pension Rules nor the
exception to Rule 56 of the Rajasthan Service Rules permits continuance in
D office of an officer of doubtful integrity or incompetence or indolence or
inefficiency; and that the reliance placed on the All India Judges' Association
case that after a judicial officer has crossed the age of 58 years, he could not
be subjected to asse~sment of his performance and has a right to continue in
service till he attained the age of 60 years is untenable.
E
Dismissing the appeals, the Court
HELD: I.I. The question of extending the age of superannuation till 60
years would not arise where the age of superannuation had been fixed at 60
years by Rule 56 amended by notification dated 27.6.1998 framed by the State.
F Further the All India Judges' Association's case would not apply due to the
statutory rules. The High Court, keeping in view the fact that the amended
rules were to come into force with effect from 31.3.1999, could not have
initiated a proceeding, prior thereto under Rule 56 as amended by notification
dated 28.12.1998 as the orders affecting substantive right could be made under
such law only after it comes into force and not in anticipation thereof.
G
[691-C-D; 692-AI
H
1.2. The Rajasthan Service Rules, 1951 apply also to the judicial officers
in terms whereof the age of superannuation had been fixed at 60 years or 58
years, as the case may be. Exception provided for in Rule 56 also is a pointer
to the fact that the said Rules apply to the judicial officers. Unless the said
CHANDRA SINGH v. STATE OF RAJASTHAN
677
rules are per se applicable, the question of making any exception to the A
applicability thereof would not arise. It cannot be accepted that the said
exception runs contrary to the decisions of this Court in All India Judges
Association's case. The said exception has been provided in conformity with
the directions contained in said decision. 1693-F-G; 694-AJ
1.3. In terms of Rule 53 of the Rajasthan Civil Service (Pension) Rules, B
1996 order for compulsory retirement can be passed only in the event the
same is in public interest and/or three months' notice or three months' pay
and allowances in lieu thereof had been complied with. Compliance of prerequisites of such a rule, it is well-settled, is mandatory and not directory.
Neither of the aforementioned conditions had been complied with.1694-FJ
C
Rajat Baran Roy and Ors. v. State of W.B. and Ors., [1999] 4 SCC 235
and Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New
Delhi and Ors., 11978] 1 SCC 405, relied on.
1.4. Article 235 of the Constitution ·enables the High Court to assess D
the performance of any judicial officer at any time with a view to discipline
the blacksheep or weed out the deadwood. This constitutional power of the
High Court cannot be circumscribed by any rule or order. [695-C-D]
State of Assam v. Ranga Mohammed, AIR (1967) SC 903; Shamsher v.
State of Punjab, AIR (1974) SC 2192 and High Court of Judicature at Bombay E
v. Shirish Kumar Rangrao Patil, AIR (1997) SC 2637, referred to.
1.5. High Court and consequently this Court while exercising its extraordinary jurisdiction under Articles 226 or 32 of the Constitution may not
strike down an illegal order although it would be lawful to do so. In a given
case, the High Court or this Court may refuse to extend the benefit of a F
discretionary relief to the appellant. Furthermore, this Court may exercise
its discretionary jurisdiction under Article 136 of the Constitution which need
not be exercised in a case where the impugned judgment is found to be
erroneous if by reason thereof substantial justice is being done. Such a relief
can be denied, inter alia, when it would be opposed to public policy or in a G
case where quashing of an illegal order would revive another illegal one. This
Court also in exercise of its jurisdiction under Article 142 of the Constitution
is entitled to pass such order which will do complete justice to the parties.
(695-H; 696-A-C(
Teherakhatoon v. Salambin Mohammad, (1999( 2 SCC 635; Champa/al H
678
SUPREME COURT REPORTS (7003) SUPP. I S.C.R.
A Sinai v. CIT, West Bengal, AIR (1970( SC 645 and S.D.S. Shipping Pvt. ltd v.
Jay Container Services Co. Pvt. ltd and Ors., (2003( 4 Supreme 44, relied
on.
1.6. A departmental proceeding can continue so long as the employee is
in service. In the event, a disciplinary proceeding is kept pending by the
B employer the employee cannot be made to retire. lhere must exist specific
provision in the pension rules in terms whereof, whole or part of the pension
can be withheld or withdrawn wherefor a proceeding has to be initiated.
Furthermore, no rule has also been brought to notice providing for
continuation of such proceeding despite permitting the employee concerned
C to retire. In 'bsence of such a proceeding, it cannot be accepted that the
departmental proceedings against the appellant M could continue.
(694-H; 695-A-BI
All India Judges' Association and Ors. v. Union of India and Ors., f 1992)
1 SCC ll9; All India Judges' Association and Ors. v. Union of India and
D Ors., (Review case) (1993) 4 SCC 288; Rajat Baran Roy and Ors. v. State of
W.B. and Ors., (1999] 4 SCC 235; High Court of Judicature at Allahabad
through Registrar v. Sarnam Singh and Anr., (2000) 2 SCC 339; Bishwanath
Prasad Singh v. State of Bihar and Ors., [2001( 2 SCC 305; High Court of
Judicature at Bombay through Registrar and Anr. v. Brij Mohan Gupta (Dead)
through lrs. and Anr., [2003) 2 SCC 390; Boppanna Venkateswaraloo and
E Ors. v. Superintendent, Central Jail, Hyderabad State, (1953] SCR 905;
Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi
and Ors., [1978] l SCC 405; Teherakhatoon v. Salambin Mohammad, [1999]
2 SCC 635; High Court of Punjab and Haryana through R.G. v. lshwar Chand
Jain, [1999] 4 SCC 579; Nepal Singh v. State of UP. and Ors., AIR [1985]
p SC 84 and S. Paradesi Thyagarajan v. High Court of Kera/a, [1998] 2 K.L.T.
967, referred to.
2. In the instant case, the actions on the part of the High Court or the
State in compulsorily retiring the appellants herein were illegal. Having gone
through the annual confidential reports of the appellants it is not a fit case
G where this court should exercise its discretionary jurisdiction in favour of
the appellant. Further the Committee of three Judges observed that the
appellants do not possess sufficient potentiality and utility to give them benefit
of extension of service. The nature of judicial service is such that it cannot
afford to suffer continuance in service of persons of doubtful integrity or who
H have lost their utility. Therefore, the appellants so retired do not lose any
CHANDRA SINGH r. STATEOF RAJASTI1AN [DR. AR. LAKSHMANAN, J.] 679
part of their benefit that they have earned during their service and it involves A
no penal consequence and the retirement is not considered prima facie and
per seas punishment. High Court and the State Government are directed to
pay all retiral benefits to the appellants as expeditiously as possible, preferably
within three months. 1696-C-H; 697-A, Bl
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5576 of2000.
B
From the Judgment and Order dated 18.8.2000 of the Rajasthan High
Court in D.B.C.W.P. No. 1589of1999.
WITH
C.A. Nos. 6078 and 7441 of2000.
K.V. Viswanathan, Atul Kumar Sinha for K.V. Venkataraman for the
Appellants in C.A. Nos. 5576 & 7441 of 2000.
c
P.P. Rao, A.P. Dhamija for Sushi! Kumar Jain for the Respondents.
D
Ranji Thomas, Ms. Bharati Upadhyaya for V.N. Raghupathy, Ms. Sandhya
Goswami for the State of Rajasthan.
In-person for C.A. No. 6078/2000.
The Judgment of the Court was delivered by
DR. AR. LAKSHMANAN, J. The questions involved in these three
appeals are identical and they are being disposed of by this common judgment.
E
By order dated 23.03.1999, the appellants, who are the officers of the p
Rajasthan Higher Judicial Service, were retired from service w.e.f. 31.03.1999
on attaining the age of superannuation. The appellants, who received the
order, challenged the same before the High Court of Rajasthan by filing writ
petitions which were disposed of by a Division Bench of the said Court. The
two learned Judges who constituted the Division Bench rendered two
concurrent judgments. While the conclusion was the same, the reasons were G
different. While one learned Judge held that the order of 23.03.1999 retiring
the appellants was sustainable under the Rajasthan Service Rules, 1951, the
other learned Judge held that the order was sustainable under the All India
Judges' Association and Ors. v. Union of India and Ors., (Review case)
H
680
SUPREME COURT REPORTS (2003] SUPP. I S.C.R.
A reported in [1993] 4 sec 288. All the writ petitions were dismissed by the High
Court and being aggrieved by the said judgments, the appellants preferred the
above appeals in this Court.
We have gone through the two concurrent judgments. Though we
agree with the conclusion arrived at by them, we would, however, prefer to
B give our own reasons for construction of the relevant provisions of the rules
and the judgments cited before us.
We have perused the Minutes of the meeting of the Committee of three
Hon'ble Judges headed by the then Chief Justice and other relevant records.
Pursuant to the judgment of this Court in All India Judges' Association's
C case (supra), the matter of several officers (including the three appellants) was
placed before the Committee to consider for giving them the benefit of extension
up to the age of 60 years.
In the Full Court meeting held on 15.01.1999, it was resolved to screen
D the officers in accordance with the decision of this Court. The Committee, on
examination of the service record, character roll, quality of their work, disposal,
integrity, general reputation and their potentiality and utility found that the
appellants are -not fit to be given the benefit of eYtension. We have perused
the report of the Committee. The Committee had extensively gone through the
entire record with minutest details and have come to the conclusion that these
E appellants are not fit to be given the benefit of extension. The Committee has
found that Shri Mata Deen Garg, Shri Bhanwar Lal Sharma and Shri Chandra
Singh are found not to possess sufficient potentiality and utility so as to give
them the benefit of extension of service up to the age of 60 years. One of the
appellants Shri Mata Deen Garg appeared in- person and argued his case. The
F Committee was of the view that the officer was not fit to be given the benefit
of extension and that his conduct can be judged from the uncontrovertible
facts emerging from the disciplinary proceedings pending against him also.
In these proceedings, he has admitted that Shri Ramesh Garg was his younger
brother and Shri Ramesh Garg stated without being controverted in crossexamination that he was looking after the interests of the claimants in the
G Motor Accident claim case which was decided by Shri Mata Deen Garg. The
charges that Shri Mata Deen Garg himself was the counsel for the claimants
in this case and he scored out his name and signatures from Vakalatnama and
other documents to conceal the fact of his being the counsel in that case are
yet to be found proved. But all the same the fact remains that he decided a
H case in which his brother was interested. Another charge in the same
CHANDRA SINGH v. STATEOF RAJASTHAN [DR. AR. LAKSHMANAN. J.] 68)
disciplinary proceedings is about harassment of a lady judicial officer by Shri A
Mata Deen Garg. Tho"ugh the enquiry is not yet over but all essential facts
relating to detention of the lady officer at his residence till late in the night
are admitted by Shri Garg except the harassment part. The Committee was of
the view that the admitted facts themselves are sufficient to disentitle Shri
Garg from continuing in service beyond 58 years of age. So far as Shri J
Bhanwar Lal Shanna, appellant no.2 is concerned, the Committee found that
the integrity of the said officer is questionable and for several years his
integrity certificate was withheld." It was also found thbt h~ was not a hard
worker and painstaking and found to be an officer of doubtful integrity and
that his several representations were also rejected.
Keeping in view the entire material placed before the Committee, the
Committee was of the opinion that these three officers, among others, also
does not deserve to be given extension beyond 58 years. It is also a matter
of record that the report of the Committee was placed before the Hon'ble
Judges of the Full Court and the Full Court has also accorded its seal of
c
approval of the same.
D
Before proceeding further, it will be useful to refer to the changes
effected by the State Government in the Rajasthan Service Rules after the
pronouncement of the judgment of this Court in All India Judges' Association
case.
Vide Notification dated February 20, 1995 following exception to Rule
56A of the Rajasthan Service Rules was substituted after sub-rule (I):
"Exception"
E
The retirement age of officers of Rajasthan Judicial Services and F
Rajasthan Higher Judicial Services who are considered to have a
potential for continued useful purpose by the Committee of Judges of
the Rajasthan High Court and headed by the Chief Justice would be
60 years while for others it would be 58 years."
Vide Notification dated June 27, 1998, existing Rules 56 and 56A of the G
Rajasthan Service Rules was substituted by the following Rule 56.
"56. The date of compulsory retirement of a Government servant would
be the afternoon of the last day of the month in which he attains the
age of 60 years.
H
682
SUPREME COURT REPORTS (2003) SUPP. I S.C.R.
A
Provided that the provisions of age of compulsory retirement as
contained in this rule shall not be applicable in the case of Government
Servants who are in service after attaining the age of compulsory
retirement either on re-employment or on extension in service.
Provided further that no Government servant shall be granted
B
extension in service beyond the age of 60 years.
c
D
E
F
G
H
Note:- I. A Government servant whose date of birth is the first of a
month shall retire from service on the afternoon of the last day
of the preceding month on attaining the age of 60 years.
2. In case the last day of the month happens to be a closed
holiday, even then the Government servant should formally
relinquish charge of the office in the afternoon of that day."
Vide Notification dated December 28, 1998 (came into force w.e.f.
31.03.1999) the aforequoted quoted Rule 56 was again substituted thus:-
"56. The date of compulsory retirement of a Government servant other
than a Government servant of Class IV would be the afternoon of the
last day of the month in which he attains the age of 58 years and the
date of compulsory retirement of a Government Servant of Class IV
would be the afternoon of the last day of the month in which he
attains the age of 60 years.
Provided that the Government servants other than Class IV who
have crossed the age of 58 years shall also be compulsorily retired on
31.03.1999.
Exception:
The retirement age of officers of Rajasthan Judicial Services and
Rajasthan Higher Judicial Services who are considered to have a
potential for continued useful purpose by the Committee of Judges
of the Rajasthan High Court and headed by the Chief Justice would
be 60 years while for others it would be 58 years.
Note:- I. A Government servant whose date of birth is the first of a
month shall retire from service on the afternoon of the last day
of the preceding month on attaining the age of compulsory
retirement.
2. In case the last day of the month happens to be a closed
CM ANDRA SINGH v. STA TEOF RAJASTHAN [DR. AR LAKSHMANAN, .I] 683
holiday, even then the Government servant should formally A
relinquish charge of the office in the afternoon of that day."
It is also beneficial to reproduce Rule 53 of the Rajasthan Civil Services
(Pension) Rules, 1996
"53. Compulsory retirement on completion of25 years qualifying service. B
( 1) At any time after a Government Servant has completed (25 years
qualifying) service or has attained the age of 50 years, whichever is
earlier, the appointing authority, upon having been satisfied that the
concerned government has on account of his indolence or doubtful
integrity or incompetence to discharge official duties or inefficiency C
in due performance of official duties, has lost his utility, may require
the concerned Government Servant to retire in public interest. In case
of such retirement the Government Servant shall be entitled to retiring
pension.
(2) In such a case, the appointing authority shall give a notice in D
writing to a Government Servant at least three months before the date
on which he is required to retire in the public interest or three months'
pay and allowances in lieu of such notice.
(3) The appointing authority may publish the order of such retirement
in Rajasthan Rajpatra, and the Government Servant shall be deemed E
to have retired on such publication, if he has not been served with
the retirement order earlier.
EXPLANATION-For the purpose of this rule, the expression
"appointing authority" shall mean the authority which is competent
to make appointments to the service or post from which the F
Government Servant retires."
The order of retirement served on the respective appellants reads thus:
We reproduce one order for sample.
" I am directed to send herewith Government Order No. 27(27) Judi/
94 dated 23.3.99 retiring you from service with effect from 3 l.3.99(AN)
on attaining the superannuation age for information and necessary
action."
G
The Governor ofRajasthan has·also by his order dated 23.03.1999 was H
684
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A pleased to retire the appellants on attaining the superannuation age on
31.03.1999 (afternoon).
We heard Shri K. V. Viswanathan, learned counsel for the appellant, in
Civil Appeal Nos. 5576 and 7441 of2000 and the appellant in Civil Appeal No.
6078 in-person. The learned counsel for the appellants submitted that the
B appellants were entitled to continue in service till they attained the age of 60
years, which right was vested in them under Rule 56 of the Rajasthan Service
Rules, 1951, as amended and notified on 27.06.1998 and that the said rule did
not provide for any pre-retirement assessment and this was the only rule in
force on 23.03.1999, when orders retiring them were passed. It was also
C pointed out that the appellant Shri Chandra Singh completed 58 years on
12.03.1999 and the appellant Shri Bhanwarlal Sharma completed 58 years on
20.09.1998 and, therefore, they could not have been retired after they crossed
the age of 58 years and before they attained the age of 60 years and such
orders are ultra vires of Rule 56 of the Rajasthan Service Rules, 1951, as
amended and notified on 27.06.1998. In support o.f the above contention, the
D learned counsel placed reliance on three rulings of this Court being Rajat
Baran Roy and Ors. v. State ofW.B. and Ors., (1999] 4 sec 235; High Court
of Judicature at Allahabad through Registrar v. Sarnam Singh and Anr.,
(2000] 2 sec 339 and Bishwanath Prasad Singh v. State of Bihar and Ors.,
(2001] 2 SCC 305. Shri Viswanathan further urged that the reliance placed by
E the respondents on the Rajasthan Service Rules, 1951 as amended and notified
on 28.12.1998 is entirely untenable as the rule itself indicates that it was to
come into force with effect from 31.03.1999. Hence on 23 .03 .1999 when orders
pursuant to pre-retirement assessments were made, the said rule which
provided for pre-retirement assessment, had not come into force.
p
In other words, whether a law is passed but had not come into force,
no substantive orders against any particular person can be made invoking the
law i.e. yet to come into force, even though the orders were to operate from
the date of commencement of the law and that the orders affecting substantive
rights could be made under such law only after the law had come into force
and not in anticipation of its coming into force. For this proposition, he relied
G on Boppanna Venkateswara/oo and Ors. v. Superintendent, Central Jail,
Hyderabad State, [1953] SCR 905.
It was contended by Shri Viswanathan that the respondents are not
justified in relying on the proviso to Rule 56 of the Rajasthan Service Rules,
H 1951 as amended and notified on 28.12.1998 and that the proviso to the said
CHANDRA SINGH v. STATEOF RAJASTHAN [DR. AR. LAKSHMANAN, J.]
685
rule does not apply to Judicial Officers, since the expression "Officers of A .
Rajasthan Judicial Service and Rajasthan Higher Judicial Services" are used
in contra distinction to the expression "Government Servants". Elaborating
further, he contended that there is an "exception" clause in the rule and the
context in which ·the exception occurs the only construction possible is that
the exception is intended to restrain the applicability of the enacting clause B
to the excepted cases and that such a construction alone would bring the rule
in consonance with the judgment of this Court in All India Judges' Association
cases and that any other construction would render the proviso ultra vires
the All India Judges' Cases.
He would further submit that Rule 53 of the Rajasthan Civil Service C
(Pension) Rules, 1997, provides for compulsory retirement on completion of
25 years of qualifying service and stated that at any time after a Government
Servant has completed 25 years qualifying service or has attained the age of
50 years whichever is earlier, he may be required by the authority to retire in
the public interest and in such a case the appointing authority should give
a notice in writing to a Government Servant at least 3 months before the date D
on which he is required to retire in the public interest or 3 months pay and
allowances in lieu of such notice. According to the learned counsel for the
appellant, this power has not been invoked by the respondents and the order
of 23.03.1999 does not say so. It is further contended that there can be no
other mode of retirement for Judicial Officer after he crosses the age of 58 E
years and before he attains 60 and the very purpose of the Judgment in the
All India Judges cases would be defeated and the aim of uniformity would
be a far cry if retirement other than by following the procedure for compulsory
retirement, is permitted after the officer crosses 58 years and before he attains
60 years. He relied on Bishwanath Prasad Singh 's case (supra).
Concluding his argument, Shri Viswanathan submitted that the orders
of 23.03.1999 are also not in conformity with the Ilnd All I!Jdia Judges case
which clearly provides that pre-retirement assessment should be made well
within the time before an officer attains 58 years by following the procedure
F
for compulsory retirement under the service rules. In view of the fact that
rules were framed and the relevant rule being the rule as notified on 27.06.1998, G
those rules alone would govern the situation. Hence he submitted that the
reasoning given by one of the Judges in this aspect is incorrect.
Mr. Mata Deen Garg who argued in-person, after adopting the arguments
of the learned counsel for the appellants, submitted that the expression H
686
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A "Government Servants" referred to in Rule 56 will not include Judicial Officers.
He would further submit that as he was facing a departmental inquiry, he
cannot be retired at the age of 58 years under the amended Rule 56. He placed
reliance on a decision of this Court in High Court of Punjab & Haryana
through R.G. v. /shwar Chand Jain and Anr., [1999] 4 SCC 579, for the
proposition that as the appellant was facing departmental inquiry, he cannot
B be retired at the age of 58 years. He also cited the decision of this Court in
Nepal Singh v. State of U.P. and Ors., AIR 1985 SC 84.
Mr. P.P. Rao, learned senior counsel appearing for the Rajasthan High
Court, respondent No. I, submitted that the All India Judges' Association
C cases will not apply to the case on hand, once the statutory rules are made.
After the rules are made, the statutory rules alone govern the superannuation
of members of judicial service as well as extension of service of those who,
in the opinion of the High Court, have a potential for continued useful
purpose, up to 60 yea~s of age. He took us through the statutory rules which
have been made from time to time and also the various rulings relied on by
D him. He also submitted that the object of the assessment under Rule 53 of
the Rajasthan Civil Services (Pension) Rules, 1996 and in tenns of the exception
to the impugned Rule 56 is broadly the same, namely, to judge the fitness of
the officer to be continued in service and, if not, retire him. According to Mr.
Rao, both rules sub-serve public interest. He would submit that neither Rule
E 53 of the Pension Rules nor the exception to Rule 56 of the Rajasthan Service
Rules permits continuance in office of an officer of doubtful integrity or
incompetence or indolence or inefficiency. Mr. Rao, in support of his
contentions, placed strong reliance on the judgments of this Court in Rajat
Baran Roy and Others case (supra), Sarnam Singh and Another case (supra)
and Bishwanath Prasad Singh 's case (supra) and submitted that the reliance
F placed on the All India Judges' Association cases by the appellants for the
proposition that after a judicial officer has crossed the age of 58 years, he
could not be subjected to assessment of his performance and has a right to
continue in service till he attained the age of 60 years is, therefore, untenable.
Mr. Rao also placed reliance on the judgment of a Division Bench of
G the Kerala High Court which upheld the order of retirement passed in the case
of S. Paradesi Thyagarajan v. High Court of Kera/a, (1998) 2 K.L.T. 967
equivalent to 1998 (2) K.L.J. 414 and the said judgment has been affinned by
this Court by its order dated 20.02.2003 in Civil Appeal No. 346 of 1999.
H
We have given our thoughtful consideration for the arguments advanced
CHANDRA SINGH v. STATEOF RAJASTHAN [DR. AR. LAKSHMANAN,J.] 687
by the counsel appearing for the respective parties and also of the appellant A
in- person. We have carefully perused the relevant rules and the Minutes of
the Committee dated 19.02.1999, the resolution by the Full Court· and other
relevant records and the judgments cited by both the sides.
All India Judges Association's case (supra) would not have had any 'B
application in the event by reason of the statutory rules the age of
superannuation would have automatically been extended to 60 years. On the
other hand, if by reason of the statutory rules governing the field the age of
superannuation of the members of the judicial service is 58 years subject to
extension of their services who, in the opinion of the High Court, would have
a potential or useful purpose up to 60 years of age, the decision of this Court C
would apply. In the instant case, the following statutory rules have been made
after the All India Judges' cases I and II:
(a)
Rajasthan Civil Services (Pension) Rules, 1996. Rule 53 of the
above rules which have already been extracted above permits D
assessment of the service record and performance of any
Government Servant at any time for the purpose of retirement
after completion of 25 years qualifying service or attaining the
age of 50 years, whichever is earlier.
(b) Amendment to Rajasthan Service Rules by notification dated E
20.02.1995 raising the age of retirement of judicial officers who
have a potential for continued useful purpose to 60 years, while
for others it was 58 years.
(c)
Further amendment of Rajasthan Service (Amendment) Rules,
1998, notified on 27.06.1998 raising the age of retirement to 60 F
years for all government servants without any distinction between
judicial officers and others.
(d) Rajasthan Service (Amendment) Rules, 1998, notified on 28.12.1998
to come into force w .e.f. 31.03 .1999 whereby the age ofretirement G
was reduced to 58 years with a proviso requiring all government
servants who have crossed the age of 58 years to be retired on
31.03.1999, subject to the exception that in the case of judicial
officers who are considered to have the potential for continued
useful purpose by the High Court, the age of retirement would
be 60 years while for others, it would be 58 years.
H
688
SUPREME COURT REPORTS (2003) SUPP. I S.C.R.
A
As by reason of the purported amendment in Rule 56 aforementioned,
B
the age of superannuation has been reduced to 58 years, the decision of this
Court in All India Judges Association's case (supra) would become applicable
in the instant case. The following three rulings can be usefully referred to in
the present context.
I.
Rajat Baran Roy and Ors. v. State of W.B. and Ors., [1999] 4 SCC
235 at 240
It is observed in para I 0 of the above judgment that the direction issued
would cease to exist when appropriate rule enhancing the retirement age of
C the judicial officer to 60 years is made and after the directions in the 1993 case
in the case of such States which had framed the rules consequent upon which
the members of the subordinate judiciary in those States became entitled to
continue in service till the age of 60 years, it will have. to be held that the
enhancement has come into force by virtue of such rules framed. In other
words, the enhancement of retirement age in those States will have de hors
D the. directions of this Court and will be subject only to the terms of the rules
applicable and in such cases, the pre-retirement assessment will not be
applicable unless the same is specifically provided under the rules.
2. High Court of Judicature at Allahabad through Registrar vs. Sarnam
E
Singh and Another, [2000] 2 sec 339 at 346.
F
G
Th is Court in para 13 has observed as under:
"These observations indicate that the procedure indicated by this
Court for evaluating the work, performance and condu.ct of Judicial
Officers, before allowing them to continue in service up to the age of
60 years, was evolved as a temporary measure and was not to be
adopted as a permanent feature. The choice was thus left to the
appointing authority. If the appointing authority itself had made
necessary service rules extending the age of retirement, the above
procedure was to be given up as the Officers would continue in
service in accordance with the service rules made by the appointing
authority in the respective States. If it was not done, then the Judicial
Officers were to continue in service till the age of 60 years in
accordance with the directions of this Court in the earlier case, provided
the Officers, on scrutiny of their service records, in accordance with
H
the directions issued in the review petition, were found suitable for
the benefit of extended service."
CHANDRA SINGH v. STATEOF RA.IASTHAN [DR. AR LAKSHMANAN, J. J 689
'
Bishwanath Prasad Singh v. State of Bihar and Ors., (2001] 2 A
~.
sec 305 at 315
j
This Court in para 7 has observed as under:
\
"It is clear that this Court intended to confer a benefit on the judicial
officers by the force of the judgment of this Court and to provide a B
mechanism for availing the benefit during the period until the State
concerned amended the service rules governing the age of
superannuation of judicial officers. Once rules are amended, the age
of superannuation would be governed by the service rules. But so
long as that was not done, the judgment of this Court in 1993 case c
was intended to govern the age of superannuation. Under the service
rules, if amended, the right to hold the judicial office shall be a
statutory right subject to satisfying the requirements, if any,
contemplated by the rules. Till then, the extended age of superannuation
of 60 years shall be a benefit available to judicial officers subject to
their satisfying the test of suitability at the evaluation or assessment D
to be made by the High Courts in accordance with the judgment of
the Supreme Court. Such evaluation is independent of and other than
an assessment undertaken for compulsory retirement in public interest
which could be resorted to earlier or later also. The abovesaid view
finds support from a number of decisions rendered by this Court
E
which may be referred to briefly."
The views which we have taken are in consonance with the decision
of this Court in the cases referred to hereinbefore. Times without number this
Court pointed out the difference between a judicial service and other services.
Keeping in view the rigours, constraints and difficulties faced by the Judicial F
Officers in discharge of their duties in All India Judges' Association v. Union
of India and Ors., (1992] I SCC 119, this Court issued a direction to all the
States and the Union Territories to the effect that the age of superannuation
of the judicial officers be fixed at 60 years with effect from 31.12.1992. A large
number of review petitions came to be filed and in All India Judges'
Association case (review case) (supra) while maintaining that the normal age G
of superannuation of the judicial officers would be 60 years, but it was
~
directed that a committee appointed by the Chief Justice would review the
'
records of the members of the judicial service with view to find out their
---<
potentiality before they attain the age of 58 years and those who, in the
opinion of the High Court are not found suitable, would be made to H
690
SUPREME COURT REPORTS (2003) SUPP. I S.C.R.
A compulsorily retire at the age of 58 years. In other words, the services of
those members of the judicial service would not be extended to 60 years.