HIGH COURT OF JUDICATURE, PATNAversusSHIVESHWAR NARAYAN AND ANR.

                 [2011] 15 {ADDL.) S.C.R. 51


          HIGH COURT OF JUDICATU~E. PATNA                         A
                               v.
            SHIVESHWAR NARAYAN
                       '
                               AND
                                 .
                                   ANR.
              (Civil Appeal No. 6103 of 2005)
                   SEPTEMBER 22, 2011
                                                                  B
   [R.M. LODHA AND JAGDISH SINGH KHEHAR, JJ.]

      Constitution of India, 1950-Article 226 - Judicial review
- Scope of -Benefit of increase of retirement age from 58
years to 60 years - Denied to Judicial Officer 'S' on basis of    c
report of Evaluation Committee (constituted by the High
 Court) as accepted and approved by the Full Court of the
 High Court - 'S' filed writ petition - Division Bench of High
 Court allowed the same and directed the High Court on its
 administrative side to re-evaluate the case of 'S' for extension 0
of service upto 60 years - Whether the Division Bench of the
High Court was justified in its power of judicial review under
Article 226 of the Constitution to interfere with the unanimous
administrative decision of the Full Court - Held: The Division
Bench of the High Court considered the matter as if it was E
sitting in appeal over the decision of the High Court on
administrative side which was not permissible - The Division
Bench failed to keep in mind the distinction between judicial
review and merit review and, thereby committed a serious
error in examining the merits of the decision of the Full Court F
- Even if, some other view was possible on the material that
was considered by the Evaluation Committee and the Full
Court to evaluate the case of 'S' for extension of
superannuation age to 60 years, that did riot justify
interference in the decision of the Full Court which was
founded on material and relevant considerations - There was G
not even an iota of a/legation of bias or ma/a fides- nor it could
have been- against the decision making authority - The
Division Bench of the High Court was, thus, clearly in error
in interfering with the decision of the High Court on
                               51                                  H
    52    SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.


A administrative side in not extending the benefit of
    enhancement of retirement age of the Judicial Officer from 58
    to 60 years - Judicial Service.
       Judicial Service - Benefit of increase in retirement age
  of Judicial Officer from 58 years to 60 years - Grant of -
B Considerations of continued usefulness in service - Held: A
  Judicial Officer may have a service record. not tainted by
  many adverse remarks; he may have got promotion from
  time to time but still he may be found to be Jacking in
  potential for continued useful service - In assessing potential
C for continued useful service, the entire record of service,
  character rolls, quality of judgments are of considerable
  importance - At the same time, over-all reputation of a Judge
  in the entire period of service, his judicial conduct, objective
  and impartial performance throughout his career are the
D relevant factors which also have to be kept in mind.
       'S', a Judicial officer prayed for extension of his
  retirement age from 58 years to 60 years. In light of the
  decision in All India Judges' Association case, the Chief
  Justice of the Patna High Court constituted an Evaluation
E Committee for assessment and evaluation of the service
  records of sixteen judicial officers including 'S', to find
  out whether they had potential for continued useful
  service upto 60 years. The Evaluation Committee finally
  resolved that 'S' did not have the potential for co"ttinued
F useful service after attaining the age of 58 years. The
  report of the Evaluation Committee was unanimously
  accepted by the Full Court of the High Court and thus 'S'
  was denied the benefit of increase in retirement age. 'S'
  filed writ petition before a Division Bench of the High
G Court which allowed the same and directed the High
  Court on its administrative side to re-evaluate his case for
  extension of service from 58 to 60 years.
        The question which arose for consideration in the
    instant appeal was whether the Division Bench of the
H
      HIGH COURT OF JUDICATURE, PATNA v.                    53 ·
             SHIVESHWAR NARAYAN
High Court was justified in its power of judicial review           A
under Article 226 of the Constitution of India to interfere
with the unanimous administrative decision of the Full
Court.
      Allowing the appeal filed by High Court of Judicature,
Patna and dismissing the appeal filed by Judicial officer          8
'S', the Court
     HELD: 1. The primary consideration for the High
Court in extending benefit of increase in the retirement
age of the Judicial Officer is his continued usefulness in C
the service based on entire service record, quality of
judgments, his conduct, integrity and all other relevant
factors. A Judicial Officer may have a service record not
tainted by many adverse remarks; he may have got
promotion from time to time but still he may be found to
be lacking in potential for continued useful service. In D
assessing potential for continued useful service, the
entire record of service, character rolls, quality of
judgments are of considerable importance. At the same
time, over-all reputation of a Judge in the entire period of
service, his judicial conduct, objective and impartial E
performance throughout his career are the relevant
factors which also have to be kept in mind. [Para 11) [60-
A-E]
     All India Judges' Association and Ors. vs. Union of India     F
and Ors. (1993) 4 sec 288: 1993 (1) Suppl. SCR 749 -
referred to.
    2. A Judicial Officer is not an ordinary government
servant; he exercises sovereign judicial power. Like
Caesar's wife; he must be above suspicion. The                     G
personality of an honest judicial officer is ultimate
guarantee to justice. The judicial officers hold office of
great trust and responsibility and their judicial conduct
must not be beyond the pale. A slightest dishonesty
(monetary, intellectual or institutional) by a judicial officer    H
    54    SUf'.'REME COURT REPORTS (2011] 15 (ADDL.) S.C.R.


A \"may have disastrous effect. The repeated complaints of
    judicial impropriety and questionable integrity against a ·
    judicial officer - althdugh not proved to the hilt - may be
    sufficient basis to disentitle such judicial officer the
    benefit of extension of retirement age to 60 years. [Para
B 11] [60-F-G]
        3.1. From the material on record, it is apparent that
   in the course of service, ten complaints were received
  against 'S' from time to time. In the complaints, there were
  allegations that he decided cases on considerations
C other than judicial; he indulged in mis-behaviour and use
  of unparliamentary language while conducting court
  proceedings; he granted bail in a triple murder case
  where the High Court had rejected the bail thrice; he
  committed irregularities in the judicial proceedings etc. In
D relation to some of the complaints, inquiries were
  Instituted. In one of the inquiries relating to grant of bail
  orders, it was found that the bail orders, passed by the
  Judicial Officer, were not sound but the inquiry was
  dropped as there was delay in making a complaint. In yet
E another complaint relating to grant of bail orders,
  although it was found that the bail orders were not sound
  but no action was taken on the administrative side as it
  was opined that the merits of these orders would be seen
  on judicial side. In respect of his mis-behiviour with a
F member of the Bar, in inquiry, the Distric· & Sessions
  Judge did find that unpleasant words were used by the
  Judicial Officer but the advocate was also found to have
  used unpleasant words and, therefore, no action was
  taken. He was also found lazy in the confidential roll of
G the year 1982-1983. In a service span of almost 30 years,
  most of the time, the Judicial Officer was adjudged as an
  "average officer". It is true that entry "below average
  officer" was expunged but the fact" of the matter is that
  he was never adjudged an "outstanding" or "very good
H officer". [Para 16] [62-A-F]
      HIGH COURT OF JUDICATURE, PATNA v.               55
             SHIVESHWAR NARAYAN
       3.2. In the backdrop of the material as abovesaid, if A
-the Evaluation Committee formed an opinion that Judicial
  Officer did not have potential for continued service and
  that decision has been accepted and approved by the
  Full Court unanimously, it cannot be said that the
  decision of the Full Court in not extending benefit of B
·increase of retirement age to 60 years is based on
  irrelevant considerations or no material. The use of the
  expression by the Evaluation Committee in its resolution
  viz; 'further continuance in service will not be in public
  interest' has to be read in the context of the subsequent c
  expression immediately following i.e. 'as he does not
  have the potential for continued useful service'. The
  Evaluation Committee evaluated and assessed the case
  of the Judicial Officer with a primary object to find out as
  to whether Judicial Officer has potential for continued 0
  useful service and having regard to the entire service
  record, character rolls, quality of judgments and other
  relevant factors, concluded that he does not have
  potential for continued useful service. The Full Court
  unanimously accepted and approved the view of the
  Evaluation Committee. The decision making process is, E
 thus, not at all flawed. The Division Bench considered the
 matter as if it was sitting in appeal over the decision of
 the High Court on administrative side which was not
  permissible. The consideration of the matter by the
 Division Bench shows that it went into the correctness F
 of the decision itself taken by the High Court on the
 administrative side and not the correctness of the
 decision making process. The Division Bench of the High
 Court failed to keep in mind the distinction between
 judicial review and merit review and, thereby committed G
 a serious error in examining the merits of the decision of
 the Full Court. [Paras 17, 18] [62-G-H; 63-A-F]
   3.3. To find out the potentiality of a Judicial Officer for
continuation in service beyond the age of 58 years H
    56    SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A following the decision of this Court in All India Judges'
  Association, the entire record of service, character rolls,
  quality of judgments and other relevant circumstances
  like general reputation, integrity, efficiency, performance,
  conduct etc. do form the basis but at the same time, it is
B not 'proved dishonesty' or 'proved mis-conduct' that is
  determinative but doubtful integrity or suspicious judicial
  conduct may be sufficient to deny a judicial officer benefit
  of enhancement of superannuation age to 60 years. It is
  in totality of the circumstances available from the entire
c service record and all other relevant circumstances that
  an opinion has to be formed whether or not the Judicial
  Officer deserves to be given benefit of Increase of
  superannuation age to 60 years. [Para 19) [63-G-H; 64-A-
  B]
D       3.4. The present case is a case where the Division
    Bench embarked upon exercise of examining each
    complaint and material against the Judicial Officer to find
    out the correctness of the decision of the Full Court
    which was legally not permissible. The weight of the
E .material is not capable of re-assessment while sitting in
  · judicial review over such decision. Even if, some other
    view is possible on the material that was considered by
    the Evaluation Committee and the Full Court to evaluate
    the case of 'S' for extension of superannuation age to 60
F years, that did not justify interference in the decision of
    the Full Court which was founded on material and
    relevant considerations. [Para 20] [64-C-D]
      State of U.P. and Ors. vs. Maharaja Dharamander
  Prasad Singh and Ors. (1989) 2 SCC 505: 1999 (1) SCR 37
G and Centre for PIL and Anr. vs Union of India and Anr.
  (2011) 4 sec 1 - referred to.
        Chief Constable of the North Wales Police v~. Evans
    (1982) 3 All ER HL 141 - referred to.
H        4. There is not even an iota of allegation of bias or
       HIGH COURT OF JUDICATURE, PATNA v.                     57
              SHIVESHWAR NARAYAN
 mala fides- nor it could have been- against the decision A
 making authority. The Division Bench of the High Court
 was, thus, clearly in error in interfering with the decision
 of the High Court on administrative side in not extending
 the benefit of enhancement of retirement age of 'S' from
 58 to 60 years. [Paras 21, 22] [64-E-F]                      8
                      Case Law Reference:
     1993 (1) Suppl. SCR 749        Referred to.      Para 4
     1982 (3) All ER HL 141         Referred to.      Para 13
     1999 (1) SCR 37                Referred to.      Para 14      c
     (2011) 4 SCC 1                 Referred to.      Para 15
     CRIM1NAL APPELLATE JURISDICTION: Criminal Appeal
 No. 6103 of 2005.
       From the Judgment and Order dated 20.05.2005 of the D
· Division Bench of the High Court of Judicature at Patna in Writ
  Petition being Civil Writ Jurisdiction Case No. 9325 of 2003.
                             WITH
Civil Appeal No. 7372 of 2005
                                                                   E
    P.H. Parekh and Sunil Kumar, Ajay Kr. Jha, Vishal Prasad,
Kshatrshal Raj (for Parekh & Co.) Parkash Sinha, S. Chandra
Shekhar, Sarla Chandra for the appearing parties.
     The Judgment of the Court was delivered by
      R.M. LODHA, J. These two appeals, by special leave, are F
from the judgment dated May 20, 2005 of the High Court of
judicature at Patna (for short "the High Court") whereby the
Division Bench of that court allowed the Writ Petition filed by
Shri Shiveshwar Narayan (for short ·Judicial Officer") and
quashed the communication dated July 30, 2003 and directed G
the High Court on its administrative side to re evaluate the case
of the Judicial Officer (petitioner therein) for extension of service
upto the age of 60 years.
     2, One appeal has been filed by the High Court through
its Registrar General and the other by the Judicial Officer.       H
    58     SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.


A        3. In appeal filed by the High Court, challenge is to the
  judgment dated May 20,2005 whereby its communication on
  the administrative side dated July 30, 2003 refusing extension
  of service to the Judicial Officer beyond the age of 58 years
  has been quashed. In the other appeal, the grievance of the
B Judicial Officer is that on allowing the Writ Petition, the Division
  Bench was not justitied in directing the High Court on its
  administrative side to reevaluate the case of Judicial Officer
  for extension of service for two years.
       4. In A// India Judges' Association and others vs. Union
C of India and others1, this Court directed the enhancement of
  the superannuation age of the judicial officers to 60 years. While
  directing so, this Court made ii clear that the benefit of
  increased age to 60 years shall not be available automatically
  to all the judicial officers and the benefit will be available to
o those who, in the opinion of the respective High Courts, have
  a potential for continued useful service.
         5. In light of the decision in All India Judges' Association1,
  the Chief Justice of the High Court constituted the Evaluation
  Committee for assessment and evaluation of service record
E concerning sixteen judicial officers, the present Judicial Officer
  being one of them, to find out whether they have potential for
  continued useful service upto 60 years. The case of the present
  Judicial Officer was required to be considered for extension of
  service as he was attaining the age of 58 years on July 15,
F 2003 and by virtue of the State Government's decision dated
  September 29, 1973 he was entitled to work till the last date
  of July, 2003 only. The Evaluation Committee on consideration
  of the present Judicial Officer's entire service record and also
  having considered the quality of judgments, character rolls and
G other relevant material including general reputation, efficiency,
  integrity and honesty, finally resolved on July 10, 2003 that he
  was not fit for further continuance in service ir> public interest
  as he does not have the potential for continued useful service.
         6. The report of the Evaluation Committee came up for
H 1. (1993) 4 sec 288.
       HIGH COURT OF JUDICATURE, PATNA v.                         59
       SHIVESHWAR NARAYAN [R.M. LODHA, J.]
consideration before the Full Court of the High Court on July A
26, 2003 and the Full Court unanimously, on that day, accepted
and approved the decision of the Evaluation Committee
denying the benefit of increase of retirement age to the present
Judicial Officer.
                                                                 8
     7. On July 30, 2003, Judicial Officer received a
communication from the Registrar General of the High Court
informing him that he was not being given the benefit of
enhancement of retirement age from 58 to 60 years.

      8. The Judicial Officer challenged the Communication C
dated July 30, 2003 in a Writ Petition before the High Court
and the Division Bench of that Court, as indicated above, by
its judgment dated May 20, 2005, quashed the communication
dated July 30, 2003 and further directed the High Court on its
administrative side to re-evaluate his case for extension from D
58 to 60 years.
    9. In para 30 of the All India Judges' Association', this
Court stated as follows:
      •....... The benefit will be available to those who, in the E
      opinion of the respective High Courts, have a potential for
      continued useful service. It is not intended as a windfall for
      the indolent, the infirm and those of doubtful integrity,
       reputation and utility. The potential for continued utility shall
      be assessed and evaluated by appropriate Committees F
      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."                             G
     10. The direction for increase of retirement age to 60 years
by this Court on consideration of the factors as indicated therein
was basically of transitory nature until the statutory rules were
1.   (1993) 4 sec 288.                                                  H
    60      SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A put in place by respective State governments. However, no
  statutory rules were framed nor the rules governing
  superannuation were amended in the State of Bihar until 2003
  and, therefore, the case of the present Judicial Officer for
  increase of retirement age to 60 years had to be considered
B in accordance with the judgment of this Court in A// India
  Judges' Association 1 •

          11. The primary consideration for the High Court in
    extending benefit of increase in the retirement age of the
    Judicial Officer is his continued usefulness in the service based
C   on entire service record, quality of judgments, his conduct,
    integrity and all other relevant factors. A Judicial Officer may
    have a service record not tainted by many adverse remarks;
    he may have got promotion from time to time but stilt he may
    be found to be lacking in potential for continued useful service.
D   In assessing potential for continued useful service, obviously
    entire record of service, character rolls, quality of judgments are
    of considerable importance. At the same time, overall
    reputation of a Judge in the entire period of service, his judicial
    conduct, objective and impartial performance throughout his
E   career are the relevant factors which also have to be kept in
    mind. A Judicial Officer is not an ordinary government servant;
    he exercises sovereign judicial power. Like Caesar's wife; he
    must be above suspicion. The personality of an honest judicial
    officer is ultimate guarantee to justice. The judicial officers hold
F   office of great trust and responsibility and their judicial conduct
    must not be beyond the pale. A slightest dishonesty (monetary,
    intellectual or institutional) by a judicial officer may have
    disastrous effect. The repeated complaints of judicial
    impropriety and questionable integrity against a judicial officer
G   - although not proved to the hilt - may be sufficient basis to
    disentitle such judicial officer the benefit of extension of
    retirement age to 60 years.

          12. The Evaluation Committee comprising of eight Judges
H   1.   (1993) 4 sec 288.
        HIGH COURT OF JUDICATURE, PATNA v.                   61
        SHIVESHWAR NARAYAN [R.M. LODHA, J.]
 including the Chief Justice on examination of the past service A
 record, character rolls, quality of judgments and matters like
 general reputation, efficiency, integrity and honesty did not
 consider the present Judicial Officer fit for continued useful
 service after attaining the age of 58 years. The Full Court
 unanimously accepted and approved the decision of the B
 Evaluation Committee. The question to be considered by us,
 is whether the Division Bench was justified in its power of judicial
 review under Article 226 of the Constitution of India to interfere
 with the unanimous administrative decision of the Full Court?

      13. Lord Hailsham in Chief Constable of the North Wales C
 Police vs. Evans 2 made the following statement:

      "......The purpose of judicial review is to ensure that the
      individual receives fair treatment, and not to ensure that the
      authority, after according fair treatment, reaches on a D
      matter which it is authorised or enjoined by law to decide
      for itself a conclusion which is correct in the eyes of the
      court."

     14. In State of U.P. and others vs. Maharaja Dharamander E
Prasad Singh and others3, it was held by this Court that judicial
review is directed, not against the decision, but is confined to
the examination of the decision-making process.

     15. Recently, in the case of Centre for PIL and another vs
Union of India and another', a three Judge Bench of this Court F
stated that a difference between judicial review and merit review
has to be kept in mind.

    16. The present Judicial Officer joined the judicial service
on April 8, 1974 as a Munsif and over the years got promotion. G
He was promoted to the post of Additional District & Sessions

2.   (1982) 3 ALL ER HL 141.
3.   (1989) 2 sec 505.
4.   (2011) 4 sec 1.                                               H
    62     SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A Judge on July 2, 1987 and confirmed as such on March 1, 1991.
  He was further promoted to the post of District & Sessions
  Judge on May 1, 1998. From the material on record, it is
  apparent that in the course of his service, ten complaints were
  received against him from time to time_ In the complaints, there
B were allegations that he decided cases on considerations other
  than judicial; he indulged in mis-behaviour and use of
  unparliamentary language while conducting court proceedings;
  he granted bail in a triple murder case where the High Court
  had rejected the bail thrice; he committed irregularities in the
C judicial proceedings etc. In relation to some of the complaints,
  inquiries were instituted. In one of the inquiries relating to grant
  of bail orders, it was found that the bail orders, passed by the
  Judicial Officer, were not sound but the inquiry was dropped
  as there was delay in making a complaint. In yet another
  complaint relating to grant of bail orders, although it was found
0
  that the bail orders were not sound but no action was taken on
  the administrative side as it was opined that the merits of these
  orders would be seen on judicial side. In respect of his mis-
  behaviour with a member of the Bar, in inquiry, the District &
  Sessions Judge, Sasaram did find that unpleasant words were
E used by the Judicial Officer but the advocate was also found
  to have used unpleasant words and, therefore, no action was
  taken. He was also found lazy in the confidential roll of the year
   1982-1983. In a service span of almost 30 years, most of the
  time, the Judicial Officer has been adjudged as an "average
F officer". It is true that entry "below average officer" was
  expunged but the fact of the matter is that he has never been
  adjudged an "outstanding" or "very good officer".
        17. In the backdrop of the above material, if the Evaluation
G Committee formed an opinion that Judicial Officer did not have
  potential for continued service and that decision has been
  accepted and approved by the Full Court unanimously, can it
  be said that the decision of the Full Court in not extending -
  benefit of increase of retirement age to 60 years is based on
H irrelevant considerations or no material? In our view, the answer
        HIGH COURT OF JUDICATURE, PATNA v.                      63
        SHIVESHWAR NARAYAN [R.M. LODHA, J.]
  has to be no. The use of the expression by the Evaluation A
  Committee in its resolution viz; 'further continuance in service
· will not be in public interest' has to be read in the context of the
  subsequent expression immediately following i.e. 'as he does
  not have the potential for continued useful service'. The
  Evaluation Committee evaluated and assessed the case of the B
  Judicial Officer with a primary object to find out as to whether
  Judicial Officer has potential for continued useful service and
  having regard to the entire service record, character rolls, quality
  of judgments and other relevant factors, concluded that he does
  not have potential for continued useful service. The Full Court c
  unanimously accepted and approved the view of the Evaluation
  Committee. The decision making process is, thus, not at all
  flawed. Unfortunately, the Division Bench considered the matter
  as if it was sitting in appeal over the decision of the High Court
  on administrative side which, in our view, was not permissible.
                                                                       0
  The consideration of the matter by the Division Bench shows
  that it has gone into the correctness of the decision itself taken
  by the High Court on the administrative side and not the
  correctness of the decision making process.
      18. On a careful reading of the judgment of the High Court, E
 we are of the view that the Division Bench failed to keep in mind
 the distinction between judicial revi&w and merit review and,
 thereby committed a serious error in examining the merits of
 the decision of the Full Court.
                                                                      F
      19. To find out the potentiality of a Judicial Officer for
 continuation in service beyond the age of 58 years following the
 decision of this Court in A// India Judges' Association 1 ,
 obviously, the entire record of service, character rolls, quality
 of judgments and other relevant circumstances like general G
 reputation, integrity, efficiency, performance, conduct etc. do
 form the basis but at the same time, it is not 'proved dishonesty'
 or 'proved mis-conduct' that is determinative but doubtful
 integrity or suspicious judicial conduct may be sufficient to deny

 1.   (1993) 4 sec 288.                                               H
    64       SUPREME COURT REPORTS (2011] 15 (AOOL.) S.C.R.


A a judicial officer benefit of enhancement of superannuation age
  to 60 years. It is in totality of the circumstances available from
  the entire service record and all other relevant circumstances
  that an opinion has to be formed whether or not the Judicial
  Officer deserves to be given benefit of increase of
B superannuation age to 60 years.

       20. The present case is a case where the Division Bench
  embarked upon exercise of examining each complaint and
  material against the Judicial Officer to find out the correctness
  of the decision of the Full Court which was legally not
C permissible. The weight of the material is not capable of re-
  assessment while sitting in judicial review over such decision.
  Even if, some other view is possible on the material that was
  considered by the Evaluation Committee and the Full Court to
  evaluate Judicial Officer's case for extension of superannuation
D age to 60 years, in our opinion, that did not justify interference
  in the decision of the Full Court which was founded on material
  and relevant considerations.

       21. We may observe that there is not even an iota of
E allegation of bias or mala fides-nor it could have been-against
  the decision making authority.

       22. The Division Bench of the High Court was, thus, clearly
  in error in interfering with the decision of the High Court on
  administrative side in not extending the benefit of enhancement
F of retirement age of the Judicial Officer from 58 to 60 years.
  23 Consequently, Civil Appeal No. 6103 of 2005, High Court
  of Judicature, Patna vs. Shiveshwar Narayan and another is
  allowed and Civil Appeal No. 7372 of 2005, Shiveshwar
  Narayan vs. High Court of Judicature at Patna and another is
G dismissed. Parties shall bear their own costs.
    B.B.B.                                  Appeals disposed of.