RAJA T BARAN ROY ETC.versusSTATE OF WEST BENGAL AND ORS.

       A                        RAJA T BARAN ROY ETC.
                                            v.
                            STATE OF WEST . BENGAL AND ORS.

                                         APRIL 13, 1999

       B     [S.P. BHARUCHA, R.C. LAHOTI AND N. SANTOSH HEGDE, JJ.]


                 Service Law :

                 Judicial Officers-Members of Higher Judicial Service-Service
       c   conditions-Retirement age-Jn 1992 Supreme Court directing the Central
           and State Governments to raise the age of retirement to 60 years-In 1993
           case putting a rider that benefit of raised retirement age be given to only
           those, who in the opinion of the respective High Courts had a potential for
           continued useful service-Members of State Higher Judicial Service equated
           at par with !AS in respect of their service conditions by way of State GO
       D   dated 20.06.1992-Central Government raised the age of retire'!'lent to 60
           years to the !AS vide its OM dated 13. 5.1998-State Government also raising
           the age of retirement of the members of the Higher Judicial Service to 60
           years vide its GO dated 15. 5.1998-Held, State cannot resort to compulsory
           retirement' at the age of 58 years after raising the retirement age to 60 years
       E   by issuing GO dated 15. 5.1998-Administrative Law-Doctrine of Promissory
           Estoppel-Constitution of India, Articles 312, 233 and 234.

                 Compulsory retirement-Judicial review-Grounds for-Material
           particular and non application of mind-State Government compulsorily

       F
           retired members of the State Higher Judicial Service under the judgment of
           this Court in 1993-Retirement sought to be justified under the powers             -
           vested in the State under Rule 75(aa) of the West Bengal Service Rules, Part
           I-No indication in the impugned orders of retirement that any aspect of           :


!
           public interest or ingredients of rule 75(aa) were taken into consideration
           while issuing the impugned orders-Held, the impugned orders were bad on
,.     G   account of non-application of mind and for want of material particulars
,,'
.
'-"·       mandatory for invoking rule 75(aa)-Administrative Law-Administrative
           action-Application of mind-Judicial review.

J                In 1992, this Court directed all State and Central Governments to
           make necessary amendments in the Rules to enhance the retirement age of
       H   all judicial officers to 60 years. Instead of complying with the direction of
                                                 618
                             R.B. ROY v. ST ATE                             619
this Court, some of the State Governments and the Union of India filed a           A
review petition which was disposed of by this Court in 1993 holding that the
benefit was available to those who, in the opinion of the respective High Court
had a potential for continued useful service. However, an emphasis was
supplied in the 1993 case that the direction issued were mere aids and
incidental and supplemental to the main direction and intended as a transitional   B
measure till a comprehensive national policy was evolved. Members of State
Higher Judicial Service were equated at par with IAS in respect of their
service conditions by way of state GO dated 20.06.1992. Central Government
raised the age of retirement to 60 years for the IAS vide its OM dated
13.5.1998. State Government also raised the age of retirement of the mem hers
of the Higher Judicial Service to 60 years vide State GO dated 15.5.1998.          C
The petitioners, members of the West Bengal Higher Judicial services, were
governed by the West Bengal Service Rules, Put I. The petitioners were
prematurely retired from the services by the impugned orders passed by the
Governor of the State, and the same was challenged by way of the present
writ petition before this Court.
                                                                                   D
     · It was contended by the petitioners that by virtue of Government Order
dated 20.6.1992, the members of Higher Judicial Service were treated at par
with the members of the Indian Administrative Service in all matters and
th~refore when the Central Government vide its OM dated 13.5.1998 intimated
to,the State Government that the retirement age of the Central Government          E
employees had been raised to 60 years, the petitioners automatically became
entitled to be retired at the age of 60.

      It was contended by the respondent that in 1992 this Court had directed
the raising of retirement age of judicial officers to 63 years with a rider in
1993 that the benefit of raised retirement age should not be available             p
automatically to all judicial officers, but to those who in the opinion of the
respective High Courts had the potential for continued useful service. It was
further contended that rule 75(aa) of West Bengal Service Rules Part I gave
the power to the State Government to retire the petitioners in public interest.

      Allowing the petitions, this Court                                           G
      HELD: 1. In view of the observations made in 1993, it is clear that the
direction issued in 1992 for raising the retirement age to 60 years would
cease to exist when appropriate rule is made for enhancing retirement age
of judicial officers to 60 years. Consequently, the rider to the direction
issued by this Court also ci:ases to operate, being coterminus with the            H
    620                    SUPREME COURT REPORTS                  [1999] 2 S.C.R.

A direction. Once the State had framed rules for raising retirement age to 60
    years, it will have to be held that the enhanced retirement age came into
    force by virtue of those rules and not by virtue of the directions issued by
    the Court in the 1992* and the 1993** cases. In such cases, pre-retirement
    assessment will not be applicable unless the same is specifically provided
B   under the rules. (623-H; 624-A-C)

        2. The order dated 20.6.1992 of the respondent-State lays down that
  members of West Be~gal Higher Judicial Service are to be treated on par
  with the members of IAS in all matters. It flows from this order that any
  change brought about in the-service conditions of the members oflAS would
C ipso facto become applicable to the members of the West Bengal Higher
  Judicial Service also. Retirement age in Central Government was raised to
  60 years by OM dated 15.5.1998 issued by the Ministry of Personnel, Public
  Grievances and Pension. The West Bengal Government too, by its order
  dated 15.5.1998, raised retirement age to 60 years. By virtue of the order
  dated 20.6.1992, retirement age raised in OM dated 15.5.1998 would
b automatically become applicable to the members of the West "Bengal Higher
  Service and therefore mem hers of the service, like IAS officers, too became
  entitled to higher retirement age i.e. 60 years. Therefore, on and from
  15.5.1998, superannuation age of the members of the West Bengal Higher
  Judicial Service came to be governed by the above rules. Consequently, the
E directions including the rider thereon issued in the 1993 case ceased to
  operate. It cannot therefore be said that the petitioners' right to continue
  in service between the age of 58 to 60 years was object to the rider imposed
  in the 1993 case. [624-C-F; 625-B-D]

          *All India Judges' Association v; Union of India, (1993) 4 SCC 288
F   and **All India Judges' Association v. Union of India, (1992) 1 sec 119,
    relied on.

         3. According to the respondents the impugned orders are justified on
  the basis of power of compulsory retirement conferred on them under Rule
G 75 (aa) of the West Bengal service Rules, Part I. However, their own affidavit
  filed in the High Court shows that they did not invoke this Rule, instead they
  purportedly invoked the power of rider in the 1993 case. Even otherwise,
  Rule 75(aa) applies where power of compulsory retirement is exercised in
  "public interest" and that too, on satisfying conditions mentioned in sub-
  clauses (1) and (2) of that Rule. The impugned orders nowhere show that
H they were being issued in public interest, which is a condition precedent for
               R.B. ROYv. STATE [SANTOSH HEGDE, J.]                        621

invoking this rule. Nor do the impugned orders advert to the conditions            A
specified in sub-paras (1) and (2) of the said rule. If the impugned orders are
to be examined in the light of this rule, then the same has to be held bad in
law for non-application of mind and want of material particulars, which are
mandatory for invoking the said rule. Therefore, the argument of the
respondents seeking to justify the impugned orders based on rule 75(aa) of         B
the said rules also has to be rejected. [625-E-H; 627-B-D]

  · CIVIL ORIGINAL JURISDICTION : Writ Petition (c) No. 578 of
1998 Etc.

      (Under Article 32 of the Constitution of India.)
                                                                                   c
      C.S. Vaidyanathan, Additional Solicitor General, T. Ray, A.S. Nambiar,
M.K. Singh, D.M. Chowdhary, S. Chandra, Pankaj Aggarwal, L.C. Agrawala,
Ms. A. Subhashini, T.A. Khan, P. Parmeshwaran, T.C. Sharma and B.K. Prasad
for the appearing parties.

      The Judgment of the Court was delivered by                                   D

      SANTOSH HEGDE, J. The above writ petitions are admitted for final
hearing. Notice having been served on the respondents, they have put in
their appearance and filed their response. Since the questions involved in
these writ petitions are common, they are being disposed of by a common            E
judgment.              ·

      In W.P. No.578/98, the petitioner was holding the post in the rank of a
District Judge, who was compulsorily retired by an order of the Governor of
West Bengal dated 23.10.1998 w.e.f. the date on which he attained the age of
58 years, i.e. 31.10.1998.                                                         F
      In W.P. No.601/98, the petitioner was also holding a post equivalent to
that of a District Judge and was similarly retired by an order of the Governor
of the State of West Bengal dated 26.10.1998 on his attaining the age of 58
years which also happened to be 31.l 0.1998.
                                                                                   G
      In W.P. No.638/98, the petitioner was posted as a District Judge and was
also compulsorily retired on his attaining the age of 58 years w.e.f. 30.11.1998
by an order of the Governor of West Bengal dated 2.11.1998. Admittedly, the
retirements of the petitioners are not on disciplinary ground but on the
ground that the High Court of Calcutta had recommended the retirement of
these judicial officers on their having attained the age of 58 years.              H
    622                       SUPREME COURT REPORTS                      [1999] 2 S.C.R.

A         The grievance of the petitioners in these petitions is that as per the
    service rules applicable to them, their retirement from service can take place
    only on their attaining the age ~f 60 years; whereas the respondents by the
    impugned orders have prematurely retired them at the age of 58 years
    purportedly on the basis of a review of the petitioners' service record,
    performance, efficiency, integrity, utility etc. by a Review Committee of the
B   High Court which, according to the petitioners, is not permissible in law. The
    respondents in their pleadings urged that it is open to the High Court to make
    a pre-retirement assessment of a member of the Higher Judicial Service in the
    State of West Bengal on or about the time such member attains the age of
    58 years, and if the High Court is not satisfied with the performance of the
C   officer concerned, it could recommend to the Governor of the State to
    compulsorily. retire the concerned officer at the age of 58 years. For this
    proposition, the res_pondents relied upon the directions given by this Court
    in All India Judges' Association & Ors. v. Union of India & Ors., [1993] 4
    SCC 288. The respondents further contend that even otherwise in view of the
    power vested in them under Clause 2(aa) of Rule 75 of the West Bengal
D   Service Rules, Part-I, which applies in respect of officers of the West Bengal
    Civil Service (Judicial) and the West Bengal Higher Judicial Service, they have
    the authority to retire the petitioners prematurely.

          We have heard learned counsel for the parties.
E
           It is an admitted fact by both sides that the retirement age of the judicial
    officers, at present, is 60 years. The petitioners contend that by virtue of the
    Notification of the Government of West Bengal No.14136-J dated 20.6.1992,
    the members of the West Bengal Higher Judicial Service are treated at par with
    the members of the Indian Administrative Service in all matters. Therefore,
F   when the Government of India on 31. l .1998 fixed the retirement age of the
    members of the Indian Administrative Service at 60 years, automatically the
    retirement age of members of the West Bengal Higher Judicial Service also got
    enhanced to 60 years. Hence, it is contended by the petitioners that their
    retirement age is enhanced by the provisions of the statutory rules. Per
G   contra, the respondents contended that the petitioners' retirement age is
    extended to 60 years by virtue of the directions issued by this Court on
    20.8.1993 in the case of All India Judges' Association case (supra) and not
    by any statutory rules. This difference in the source of retirement age has a
    direct bearing on the validity of the impugned orders.

H         To decide this controversy, it is necessary to briefly refer to the directions
                R.B. ROYv. STATE [SANTOSH HEGDE,"J.]                          623
issued in the two cases of All India Judges' Association.                             A
      In the first case of All India Judges' Association reported in (1992] I
SCC 119 (hereinafter referred to as 'the 1992 case'), this Court issued the
following direction :-

           "(iii) Retirement age of judicial officer~ be raised to 60 years and       B
        appropriate steps are to be taken by December 31, 1992."

        As per the above direction, it became the duty of all the States and the
Union of India to make suitable provisions in the concerned Rules to enhance
the retirement age of the judicial officers to 60 years by 31.12.1992. Instead        C
of complying with the directions of this Court in the 1992 case, the Union of
India and some of the States filed review petitions before this Court on
various grounds. The stand taken by the review petitioners was rejected by
this Court by an order which is reported in All India Judges' Association &
Ors. v. Union ofIndia & Ors., (1993] 4 SCC 288 (hereinafter referred to as 'the
1993 case'). By this order, this Court while directing that the retirement age        D
of the members of subordinate judiciary in India should be 60 years, added
a rider to the increase in the retirement age by holding that this benefit of
increase in retirement age shall not be available automatically to all judicial
officers irrespective of their past record of service and evidence of their
continued utility to the judicial system. The benefit, according to this Court,       E
was available to those who, in the opinion of the respective High Courts,
have a potential for continued useful service. The Court further said that 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 was directed
to be assessed and evaluated by appropriate Committees of Judges of the
respective High Courts constituted and headed by the Chief Justices of the            F
High Courts. This direction in regard to the retirement age and other directions
given in regard to the members of the Higher Judicial Service in India in the
1993 case, came to be issued because of the failure on the part of the
Governments concerned to perform their obligatory duties. If as per the 1992
directions, the Governments concerned had acted diligently then there would           G
not have been any cause for issuing the 1993 directions and, consequently,
the rider that was included in the 1993 directions, would not have been there
at all. That apart, in the 1993 directions, this Court in unequivocal terms said:
"The directions issued are mere aids and incidental to and supplemental of
the main direction and intended as a transitional measure till a
comprehensive national policy is evolved." (emphasis supplied). In view of            H
    624                      SUPREME COURT REPORTS                     (1999] 2 S.C.R.

A this observation, it is clear that the direction issued as above, would cease·
  to exist when appropriate rule enhancing the retirement age of the judicial
  officers to 60 years is made. Consequently, the rider to the direction issued
  by the Court also ceases to operate, being co-terminus with the direction.
  After the directions in the 1993 case, in the case of such States which had
  framed rules consequent upon which the members of the subordinate judiciary
B in those States became entitled to continue in s~rvice 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 ot~er words, the enhancement of retirement age in
  those States will be de hors the directions of this Court and will be subject
  only to the terms of the rules applicable. In such cases, in our opinion, the
C pre-retirement assessment will not be applicable unless the same is specifically
  provided under the Rules.

           In the State of West Bengal, it is to be noted that by virtue of the
    Government Order dated 20.6.1992, the members of the West Bengal Higher
    Judicial Service were treated at par with the members of the Indian
D   Administrative Service in all matters. Fro111 this order, it flows that any change
    that is brought about in the service conditions of the members of the Indian
    Administrative Service would ipso facto becomes applicable to the members
    of the West Bengal Higher Judicial Service also. Consequent upon the
    recommendations made by the 5th Central Pay Commission, it is seen from
E   records that the Ministry of Personnel, Public Grievances & Pension
    (Department of Personnel & Training), Government of India, by an Office
    Memorandum dated 13.5.1998, informed the State of West Bengal that "the
    President is pleased to direct that: (a) Except as otherwise provided specifically,
    every Government servant whose age of retirement is currently 58 years shall
    now retire from service on the afternoon of the last day of the in onth in which
F   he/she attains the age of sixty years. However, Government servants whost:
    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 sixty years".
    The Government of West Bengal by a separate order dated 15.5.1998
    implemented the aforesaid Office Memorandum of the Government of India in
G   the following terms :

                 "The terms of reference of the 4th Pay Commission include inter
            alia, the issues relating to retirement benefits. The Pay Commission
            has submitted a report for enhancement of age of retirement from fifty
            eight years to sixty years.

H                After careful consideration of the recommendation, the Gt>vernor
-                    R.B. ROY v. STATE [SANTOSH HEQDE, J.]                         625
              is pleased to order in partial modification of Rule 75(a) ofW.B.S.R. Pt.
              I, that the Government employees of Group-A, Group-B and
                                                                                           A

              Group-C, service shall retire from service compulsorily with effect from
              the afternoon of the last day of the month in which they attain the
              age of sixty years.


---           This will take immediate effect."

            By virtue of the Government Order of the State of West Bengal dated
                                                                                           B

      20.6.1992 when the State Government applied the change in service conditions
      as per the Office Memorandum dated 15 .5 .1998 to the members of its services
      automatically the said change in the age of retirement became applicable to
      the members of the West Bengal Higher Judicial Service also. In other words,         C
      when the retirement age of the officers of the Indian Administrative Service
      stood extended from 58 years to 60 years, the retirement age of the members
      of the West Bengal Judici~I Service also automatically got extended from 58
      years to 60 years. There'fore on and from the above date, the age of
      superannuation ofa member of the West Bengal Higher Judicial Service came            D
      to be governed by the above rules. Consequently, the directions including the
      raider there on issued by this court in the 1993 case ceases to operate.
      Therefore, in our opinion, the contention of the respondents that the rights
      of the petitioners to continue in service till the age of 60 years is derived from
      the directions issued by this Court in the 1993 case, cannot be accepted, and
      we hold that so far as the members of the West Bengal Higher Judicial Service        E
      are concerned, their age of superannuation is 60 years, as contemplated in the
      Official Memorandum of the Government of West Bengal dated 15.5.1998 as
      made applicable to the Higher Judicial Service of West Bengal in its order
      dated 20.6.1992 and the said Office Memorandum and the Government Order
      having not fixed any pre-retirement assessment at the age of 58, it was not          F
      open to the High Court to have recommended the compulsory retirement of
      the petitioners, following directions of this court which had ceased to exist.

            Alternatively, it is contended on behalf of the respondents that the
      impugned orders can also be justified by virtue of the power vested in them
      under Rule 75(aa) of the West Bengal Service Rules, Part I. It is contended          G
      that in view of the said Rule, it is open to the respondents to retire a
      Government Servant in public interest. Before we go into the validity of this
      argument, it is necessary to examine whether, in fact, the respondents invoked
      this Rule for the purpose of issuing the impugned orders or not. A perusal
      of the affidavit filed on behalf of the High Court clearly shows that the
      respondents in exercise of the power vested in them by virtue of the directions      H
    626                      SUPREME COURT REPORTS                      [1999] 2 S.C.R. '

A   given in the 1993 case, proceeded to pass the impugned orders. This is crystal
    clear from the following paragraphs extracted from the affidavit filed on beha:fr       •
    of the Registrar of the High Court of Calcutta :                                        r--r
                "3.4 In terms of the aforementioned memorandum dated 13.9.1994,
            and this Hon'ble Court's judgmellt in the All India Judges case;
B           Respondent No. I, the Judicial Department, Govt. of West Bengal
            passed an order, Order No.9509-J dated 23.10.1998 inter alia stating
            that the writ petitioner was to retire compulsorily from service on his
            attaining 58 years i.e. on 31. l 0.1998. The said order was passed on the
            recommendation of the High Court. The High Court reviewed the
c           petitioner's service records, performance, efficiency, integrity, utility
            etc. and only after full assessment thereof the said decision by the
            Review Committee of the High Court to compulsorily retire the writ
            petitioner was taken and consequential orders passed."

            xxx                              xxx                                xxx
D                 "3.8 Primarily it appears from the contents of the various grounds
            taken by the writ petitioner that the petitioner is praying for continuance
            in judicial service till age of 60 without the required review procedure
            to be followed in terms of this Hon'ble Court's orders in All India
            Judges case basing his claim on the recommendation of the 4th Pay
E           Commission of the State Government enhancing the age of
            superannuation of officers etc. of the West Bengal Civil Service which
            is in effect a consequential order issued after the 5th Pay Commission
            of the Central Government recommended the age of retirement at 60
            years."

F         In view of the above pleadings, it is not possible for us to accept the
    alternate argument of the respondents that the impugned orders are de hors
    the directions issued by this Court in the 1993 case.

          We will now examine the contention of the respondents that the
G   impugned orders can be independently justified in view of the power vested
    in them by virtue of Rule 75(aa) of the West Bengal Service Rules, Part-I. The
    said Rule reads thus :

                "Notwithstanding anything contained in this Rule the appointing
            authority shall, if it is of opinion that it is in the public interest so to
H           do, have the absolute right to retire a government employee by giving
-                       R.B. ROYv. STATE (SANTOSH HEGDE, J.]                       627
                 him notice of not less than three months in writing or three months'
                 pay and allowances in lieu of such notice-
                                                                                          A

                 (i)   If he is in Group-A or Group-B (erstwhile gazetted) service of
                       post and had entered government service before attaining the
                       age of 35 years, if he has attained the age of 50 years and
                 (iI) · In all other cases after he has attained the age of 55 years."    B

              A perusal of this Rule shows that this Rule can be invoked for the
        purpose of retiring a Government servant in "public interest" on satisfying
        the conditions mentioned in sub-clauses (l) and (2) of that Rule. A careful
        perusal of the impugned orders nowhere shows that the said orders are being C
        issued in "public interest" which is a condition precedent for invoking this
        Rule. Nor does it advert anywhere in the impugned orders in regard to the
        conditions specified in sub-paras (I) and (2) of the said Rule. If we have to
        examine the impugned orders in the light of this Rule then the same has to
        be held to be bad in law for non-application of mind and want of material
        particulars which are mandatory· for invoking the said Rule. Therefore, the D
        argument of the respondents seeking to justify the impugned orders based
        on Rule 75(aa) of the said Rules also has to be rejected.

             In the said view of the matter, we do not find any force in the arguments
        advanced on behalf of the respondents to sustain the impugned orders.
                                                                                          E
              For the reasons stated above, these writ petitions are allowed. The
        impugned orders No.9509-J dated 23.10.1998, No.9518-J dated 26.10.1998 and
        No.9628-J dated 2.11.1998 issued in the name of the Governor of West Bengal
        by the Government of West Bengal are hereby quashed. No order as to costs.

        R.K.S.                                                       Petitions allowed.   F

-,;..