N.C. DASversusGAUHATI HIGH COURT THR. REGISTRAR & ORS.

                         (2012) 1 S.C.R. 128


A                              N.C. DAS
                                   v.
        GAUHATI HIGH COURT THR. REGISTRAR & ORS.
            (Writ Petition (Civil) No(s). 31 of 2004)
                         JANUARY 11, 2012
B
             [R.M. LODHA AND H.L GOKHALE, JJ.]

        SERVICE LAW:

c      Promotion - Denial of - Judicial service - Member of
  Tripura Judicial Service (Grade-I/) - Critaria for promotion
  being merit-cum-seniority - Held: In view of the remarks in the
  ACRs of the officer for three years immediately preceding the
  date of consideration of the officer's promotion, that he was
0 not found fit for promotion, it cannot be said that he was wrongly
  denied promotion to Grade-I - Tripura Judicial Service Rules,
  1974 - r.7.
       Retirement - Judicial service - Member of Tripura Judicial
  Service - On completion of 58 years of age, service not
E extended upto 60 years - Held: Clause (B) has overriding
  effect over Clause (A) of the amended r.20 of the Tripura
  Judicial Service Rules, 2003 - Petitioner is not entitled to the
  relief - Tripura Judicial Service Rules, 2003 - r. 20(A) and (B) ..

F      In the Instant writ petition and the interlocutory
  application filed by a member of Trlpura Judicial Service
  (Grade-II) and holding the post of Civil Judge (Senior
  Division), the Issue for consideration before the Court
  was the propriety of: (i) denial of promotion to the
G petitioner to Grade-I; and (ii) not extending the service of
  l'1e petitioner upto the age of sixty years under r. 20(8)
  of the Tripura Judicial Service Rules, 2003.
      Dismissing the writ petition and the interlocutory
  application, the Court
H                          128
      N.C. DAS v. GAUHATI HIGH COURT THR.              129
               REGISTRAR & ORS.
     HELD: 1. According to r.7(1) of the Tripura Judicial A
Service Rules, 1974, appointment to the post of Grade-I
and Grade-II by promotion from the next grade below
shall be made on the ground of merit-cum-seniority. In the
petitioner's ACRs for the last three years, I.e., 2000, 2001
and 2002, lm1;iediately preceding the date of B
consideration of his case for promotion, it has been
recorded that he was not found fit for promotion. Based
on these remarks In the ACRs, if the petitioner has been
denied promotion in July 2003, such action can hardly be
faulted. The remarks In ACRs do enable the authority to c
assess comparative merit once the question of promotion
arises when the criteria for promotion is merit-cum-
seniority. Thus, it cannot be said that the petitioner has
been wrongly denied promotion to Grade-I. (para 6) (131·
E-H; 132-A·C]                                                D
    2.1. The mode and manner of assessment and
evaluation of the potential of continued utility is
prescribed in r. 20(8)(1) of the Tripura Judicial Service
Rules, 2003. Clause (B) of r. 20 of the 2003 Rules, as
amended in 2006, makes It clear that the High Court is        E
empowered to assess and evaluate the record of a
judicial officer for continued utility in service upto 60
years. Clause (B) has overriding effect over Clause (A) of
the said rule. This is clear from the expression
"Notwithstanding anything contained In Clause (A)" with       F
which Clause (B) begins. (para 10) (134-E..f]

     2.2. No legal flaw has been pointed out to the
exercise undertaken by the High Court In respect of the
assessment and evaluation of the petitioner's service for     G
continued utility in service upto 60 years. [para 10) (134·
F-G]
    All India Judges' Association & Ors. Vs. Union of India
& Ors., 2002 (2) SCR 712 =2002 (4) SCC 247 ·referred to.
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     130        SUPREME COURT REPORTS                (2012) 1 S.C.R.

 A                          Case Law Reference:
           2002 (2) SCR 712          referred to            para 4
        CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
     31of2004.
 B
           Under Article 32 of the Constitution of India.
        Manoj Swarup, Hiren Dasan, Uday Gupta, Harish Dasan,
   Suvendu S. Das, Preshit Surshe, Salra Chandra for the
 C Petitioner.
          Vijay Hansaria, P.I. Jose, Sneha Kalita, Anupam Mishra,
     Rituraj Biswas (for Gopal Singh) for the Respondents.
           The Judg·ment of the Court was delivered by
 D
           R.M. LODHA, J. 1. The petitioner on the date of filing the·
   Writ Petition under Article 32 of the Constitution of India was a
   member of Tripura Judicial Service (Grade II) and was holding
   the post of Civil Judge (Senior Division) and Assistant Sessions
 E Judge, North Tripura. He has prayed for diverse reliefs in the
   Writ Petition, including the direction to the High Court to
   incorporate "court suitability test" in the Tripura Judicial Service
   Rules, 2003 (for short, '2003 Rules') and further direction that
   the petitioner should be considered for promotion on the post
 F of Grade-I.
          2. On February 3, 2004 this Court issued limited notice on
     the question of not making any provision for judging the
     suitability of Judicial Officers for the purposes of promotion in
     the 2003 Rules and relaxation in the age of qualifying service.
G
         3. The petitioner has retired from service on December
     31, 2006, during the pendency of the Writ Petition, as Civil
     Judge (Senior Division) and Assistant Sessions Judge, Grade-
     l
.H
      N.C. DAS v. GAUHATI HIGH COURT THR.               131
        REGISTRAR & ORS. [R.M. LODHA, J.)
     4. The petitioner made application being Interlocutory A
Application No. 3 of 2005 and prayed to quash the Memo
dated June 7, 2005 issued by the Gauhati High Court and for
direction to the Gauhati High Court to consider the case of the
petitioner for the benefits of Assured Career Progress in
accordance with the recommendations of Shetty Commission B
Report which was accepted by this Court in All India Judges'
Association & Ors. Vs. Union of India & Ors., 2002 (4) SCC
247.

      5. On October 7, 2010, while disposing of Interlocutory c.
Application No. 3 of 2005, the matter was adjourned to enable
the petitioner to challenge the order dated June 7, 2005 by
which the benefits under Assured Career Progress were denied
to him in appropriate proceedings. We are informed that the
petitioner has not challenged the order dated June 7, 2005 0
pursuant to the above liberty.
      6. Mr. Manoj Swarup, learned counsel for the petitioner,
submitted that the petitioner was wrongly denied promotion in
July 2003 although his juniors were accorded promotion. He
further submitted that in July 2003, the petitioner's case for E
promotion ought to have been considered under the Tripura
Judicial Service Rules, 1974 (for short, '1974 Rules'). In this
regard, he referred to Rule 7(1) of the 1974 Rules. Rule 7(1)
of the 1974 Rules provides for qualifications for recruitment to
the service in Grade-I and Grade-II. According to this Rule, F
appointment to the post of Grade-I and Grade-II by promotion
from the next grade below shall be made on the ground of rnerit-
cum-seniority. In the petitioner's ACR of the year 2000, it has
been recorded that he was not yet fit for promotion. Similar
remarks have been recorded in 2001 and 2002 ACRs. Thus, G
in last three years immediately preceding the date of
consideration of the petitioner's case for promotion, his ACRs
show that he was not found fit for promotion. Based on the
remarks in the ACRs of the years 2000, 2001 and 2002 if the
petitioner has been denied promotion in July 2003, such action H
    132     SUPREME COURT REPORTS               [2012] 1 S.C.R.

A can hardly be faulted. The remarks in ACRs do enable the
  authority to assess comparative merit once the question of
  promotion arises when the criteria for promotion is merit-cum-
  senioritt,-lt is pertinent to notice that the adverse remarks in
  the ACRs of 2000 and 2001 were communicated to the
B petitioner on November 28, 2002 and the adverse remarks for
  the year 2002 were communicated to him on May 19, 2003.
  The adverse remarks were thus communicated to the petitioner
  before July 29, 2003 and these remarks continued to remain
  on record though the petitioner had submitted his
c representation/reply thereto. Be that as it may, in view of the
  petitioner's service record of the years 2000, 2001 and 2002,
  it cannot be said that he has been wrongly denied promotion
  to Grade-I.
        7. Mr. Manoj Swarup, learned counsel for the petitioner,
0
  also raised the grievance that the petitioner has been made to
  retire on Dei:ember 31, 2006 on attaining the age of 58 years
  although the superannuation age stood enhanced to 60 years.
  He invited our attention to the prayer made in Interlocutory
E Application No. 5 of 2006.
       8. From the communication dated January 7, 2006 sent
  by the Registrar, Gauhati High Court to the Secretary, Law
  Department, Government of Tripura, it appears that the matter
  pertaining to extension of services of the petitioner under the
F 2003 Rules was considered by the Gauhati High Court and the
  High Court was satisfied that the extension of petitioner's
  services upto the age of 60 years did not deserve to be
  recommended. The only groi.nd raised in the Interlocutory
  Application No. 5 of 2006 is that the amended Rule 20 of the
G 2003 Rules has enhanced the age of superannuation upto the
  age of 60 years which is not subject to any discretion to be
  applied by the High Court. We are unable to accept the
  contention of the petitioner in this regard. Rule 20 of the 2003
  Rules prior to amendment reads as follows :-
H
        N.C. DAS v. GAUHATI HIGH COURT THR.                    133
         REGISTRAR & ORS. [R.M. LODHA, J.]
     "RETIREMENT                                                       A
     (A) Except as otherwise provided in these Rules, every
     Judicial Officer shall retire from the service on the afternoon
     of the last date of the month in which he attains the age of
     58 years.                                                         B
     Provided that all Judicial Officers whose date of birth is
     the 1st day of a month shall retire from service on the
     afternoon of the last day of the preceding month on
     attaining the age of 58 years.
                                                                       c
     (B) Notwithstanding anything contained in Clause (A)
     above, a Judicial Officer, who in the opinion of the High
     Court, have the potential to continue with his service, shall
     be retained in service up to 60 years.
            (I) The potential for continued utility shall be           D
            assessed and evaluated by appropriate
            Committee of Judges of the High Court, constituted
            and headed by the Chief Justice and the evaluation
            shall be made on the basis of the Officer's past
            record of service, character roll, quality of judgments    E
            and other relevant matters.
            (II) The High Court should undertake and complete
            the exercise well within time before the Officer
            attains the age of 58 years and take a decision            F
            whether the benefit of extended service is to be
            given to the officer or not.
            (Ill) In case he is found flt for being given the benefit
            of extended age of superannuation, the Governor
            shall, on the recommendation of the High Court, G
            issue necessary order."

     9. Rule 20 of the 2003 Rules came to be amended with
effect from May 19, 2006. In Clause (A) of Rule 20 for the figure
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    134        SUPREME COURT REPORTS                 [2012] 1 S.C.R.


A '58' at both the places, the figure '60' was substituted. For
  Clause (8), the following was substituted:-
          "Clause (8) Notwithstanding anything contained in Clause
          (A) above, the High Court shall have power to assess and
8         evaluate the record of the Judicial Officer for his· continued .
          utility in service upto 60 years.

                 (I) The potential for continued utility shall be
                 assessed and evaluated by appropriate
                 Committee of Judges of the High Court, constituted
c                and headed by the Chief Justice and the evaluation
                 shall be made on the basis of the Officer's past
                 record of service, character roll, quality of judgments
                 and other relevant matters.

D                (II) The High Court shall undertake and complete the
                 exercise well within time before the Officer attains
                 the age of 58 years."

        10. A bare perusal of the Clause (8) of amended Rule 20
  leaves no manner of doubt that the High Court is empowered
E to assess and evaluate the record of a judicial officer for
  continued utility in service upto 60 years. Clause (8) has
  overriding effect over Clause (A) of Rule 20. This is clear from
  the expression "Notwithstanding anything contained in Clause
  (A)" with which Clause (8) begins. The mode and manner of
F assessment and evaluation cf the potential of continued utility
  is prescribed in Rule 20(8)(1) of the 2003 Rules. No legal flaw
  has been pointed out to the exercise undertaken by the High
  Court in respect of the assessment and evaluation of the
  petitioner's service for continued 1,1tility in service upto 60 years.
G We are satisfied that the petitioner is not entitled to the relief
  claimed in Interlocutory Application No. 5 of 2006. Interlocutory
  Application No. 5 of 2006 is, accordingly, dismissed.

       11. It is not necessary to consider the other prayers in the
H Writ Petition as Mr. Manoj Swarup, learned counsel for the
       N.C. DAS v. GAUHATI HIGH COURT THR.                       135
         REGISTRAR & ORS. [R.M. LODHA, J.]
petitioners, did not press for prayers 1 to 4 made in the Writ          A
Petition .
  •
     12. Accordingly, Writ Petition has no merit and deserves
to be dismissed and is dismissed.
                                                                        B
      13. We record the statement of Mr. Vijay Hansaria, learned
senior counsel for the respondent No. 1-Gauhati High Court-
that the petitioner has been paid all his retiral benefits, including
accumulated pension.

R.P.                                     Writ Petition dismissed.       C