L J SAIYED Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Non -extension of service beyond the age of 58 years is challenged by the Judicial Officer in the present Special Civil Application. Whether on the basis of proper assessment of service record of the petitioner his services were required to be extended by extending the age of superannuation from 58 years to 60 years is the question, which is required to be considered in this petition. On the basis of assessment of the service record of the petitioner the High Court on its administrative side took decision not to give benefit of enhanced age of superannuation upto 60 years from 58 years. The petitioner was appointed as a Labour Judge with effect from 06th June, 1983. The petitioner thereafter promoted as Chief Judge, Labour Court with effect from 25th November, 1994. The petitioner was thereafter appointed as the Member of the Industrial Court with effect from 29th December, 2000. By way of this petition the petitioner has challenged the decisin of the High Court on its administrative side by which the petitioner has not been given benefit of enhancement of superannuation age upto 60 years from 58 years. The petitioner was communicated the decision by communication dated 17th October, 2001, which is at Annexure -B in the compilation. The petitioner was informed by the President of the Industrial Court that as per the direction of the High Court, it is found that the petitioner was not fit for the benefit of enhancement of superannuation age upto 60 years and in that view of the matter, he would stand retire on 31st October, 2001 after office hours.

(2.) The aforesaid decision is challenged mainly on the following grounds :

(3.) Learned Counsel Mr.Shalin Mehta on the other hand submits that the age of retirement of the petitioner is as such 58 years, which can be now extended upto 60 years in case the High Court recommends for extension of superannuation age upto 60 years. On recommendation of the High Court, the Government has to issue Notification extending the superannuation age of the concerned Judicial Officer upto 60 years. In absence of such Notification, Judicial Officer stands retired on completion of 58 years of age. It is submitted by Mr.Shalin Mehta that as per the provisions of the Bombay Civil Services Rules, on completion of 58 years, a person stands retired on reaching age of superannuation unless it is extended by Notification. It is further submitted by Mr.Mehta that no such Notification is issued by the State Government in this behalf pointing out that services of the petitioner is extended. It is further submitted by Mr.Mehta that it is not a case of premature retirement by way of penalty, but on completion of 58 years of age, on reviewing the service record of the petitioner, High Court on its administrative side decided not to give benefit of enhancement of superannuation age from 58 years to 60 years. It is submitted by Mr.Mehta that it is always open for the HighCourt administration to consider as to whether the services of the petitioner is required to be extended or not and while considering the same, there is nothing wrong if decision is taken to give such benefit to the best available person. The employer has always a choice to continue the service of such best available person. It is submitted that in a judicial service if the High Court on its administrative side decided not to give extension for two years on the basis of evaluation of total service record, it cannot be said that the said decision is bad in law in any manner. It is submitted by Mr.Mehta that allegation of the petitioner that Mr.N.A. Acharya, the then President of the Industrial Court, has not placed relevant material, has no relevance in any manner in the present case as the decision is taken by the High Court on its administrative side by considering overall service record of the petitioner. It issubmitted by Mr.Mehta that in order to find out the suitability of the petitioner for further retention of service, the Chief Justice appointed a Committee. The Committee thereafter recommended to the Unit Judge, who is in charge of Judges of Labour Courts and Industrial Courts, to give his report. The Unit Judgeafter considering the service record and after going through the judgments of the petitioner, gave his report in which he has not recommended extension beyond 58 years and the said report was accepted by the Standing Committee. The same was thereafter placed before the Full House of the High Court. The Full House of the High Court has approved such decision. It is submitted that there is no allegation either against the Unit Judge or against the Members of the Standing Committee or against the Full House of the High Court and under such circumstances, simply in the past the petitioner had filed affidavit in the matter of appointment of Shri N.A. Acharya, taking contrary stand from the one, which was taken by the High Court on its administrative side in that case, cannot be said to be a ground which has no relevance so far as the impugned decision is concerned. It is submitted by Mr.Mehta that this Court has very limitedjurisdiction of judicial review in such cases. It is further submitted by Mr.Mehta that it is true that there is no adverse entry, but the fact remains that there is not a single entry showing that the petitioner is an "excellent officer" and all throughout the entry showed that he is "good officer". It is also argued by Mr.Mehta that at the relevant point of time, i.e. at the time when the case of the petitioner was taken for consideration for extension of superannuation age from 58 years to 60 years, a vigilance complaint was pending against the petitioner and on the basis of assessment of his judgment and on the basis of his performance, the Unit Judge thought it fit not to recommend enhancement of superannuation age in case of the petitioner from 58 years to 60 years. Considering the judgments of the petitioner the Unit Judge found that he was "an average officer". The said decision was accepted by the Full Court of the High Court. This Court in its limited jurisdiction cannot review such decision by way of merit review. It is further submitted that this is not a case in which there is an error in the process of taking the decision or that the decision is malafide or arbitrary, which can be corrected by the High Court by way of judicial review in writ petition. It is further submitted that in case the extension in the superannuation age is given from 58 years to 60 years, Notification of the Government is required, but not otherwise. In absence of such Notification, the petitioner stands retired by way of superannuation on completion of 58 years of age. It is further submitted by Mr.Mehta that mere absence of guidelines for extension from 58 years to 60 years cannot be said to be a ground for challenging the order, specially when on the basis of objective scrutiny the decsion was taken not to give extension to the petitioner. There is no procedural illegality in any manner in not giving extension to the petitioner. It is submitted that it can never be said that the High Court on its administrative side has not considered the relevant materials for coming to the conclusionor that no reasonable person can come to such a conclusion, which is arrived at by the High Court on its administrative side. Subsequently, the representation of the petitioner, which is pending, regarding giving him deemed date, was accepted long after the impugned decision. The said aspect has no relevance in deciding the controversy. It is submitted that even if in a given case promotion is given, it has no relevance so far as assessing the service record of a Judicial Officer for giving benefit of extended superannuation age from 58 years to 60 years. In a given case, one can be entitled to get promotion, but he may not be suitable for further extension, which aspect is required to be considered on the basis of his entire service record, which will include even pendency of any complaint and whether such Officer will be useful by utilizing his services beyond the age of 58 years. The High Court can certainly consider as to whether if extension is given, services of such Officer can be effectively utilized during that extended period or not.