TMI Blog2003 (7) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... jasthan Service Rules, 1951, the other learned Judge held that the order was sustainable under the All India Judges' Association and Others vs. Union of India Ors. (Review case) reported in (1993) 4 SCC 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 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 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 the officers in accordance with the decision of this Court. The Committee, on exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 approval of the same. 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 (1): 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. Vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of 25 years qualifying service. (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 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 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 to have retired on such publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect 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. 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 on Boppanna Venkateswaraloo and Others vs. 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, 1951 as amended and notified on 28.12.1998 and that the proviso to the said rule does not apply to Judicial Officers, since the expression Officers of Rajasthan Judicial Service and Rajasthan Higher Judicial Services are used in contra distinction to the expression Government Servants . Elab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Mr. Mata Deen Garg who argued in-person, after adopting the arguments of the learned counsel for the appellants, submitted that the expression 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. vs. Ishwar Chand Jain and Another, (1999) 4 SCC 579, for the proposition that as the appellant was facing departmental inquiry, he cannot be retired at the age of 58 years. He also cited the decision of this Court in Nepal Singh vs. State of U.P. and Others, AIR 1985 SC 84. Mr. P.P. Rao, learned senior counsel appearing for the Rajasthan High Court, respondent No.1, submitted that the All India Judges' Association 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 purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les 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 the directions issued in the review petition, were found suitable for the benefit of extended service. 3. Bishwanath Prasad Singh vs. State of Bihar and Others (2001) 2 SCC 305 at 315 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 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 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 requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable to him and give him the benefit of the extended superannuation age from 58 to 60 years only if he is found fit and eligible, he should be compulsorily retired on his attaining the age of 58 years. The assessment in question should be done before the attainment of the age of 58 years even in cases where the earlier superannuation age was less than 58 years. The assessment directed here is for evaluating the eligibility to continue in service beyond 58 years of age and is in addition to and independent of the assessment for compulsory retirement that may have to be undertaken under the relevant Service rules, at the earlier stage/s. Since the service conditions with regard to superannuation age of the existing judicial officers is hereby changed, those judicial officers who are not desirous of availing of the benefit of the enhanced superannuation age with the condition for compulsory retirement at the age of 58 years, have the option to retire at the age of 58 years. They should exercise this option in writing before they attain the age of 57 years. Those who do not exercise the said option before they attain the age of 57 years, would be deemed to have opted for cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been reviewed as on the said date. Despite the same, however, the Review Committee of the High Court considered the question as to whether having regard to their performance their services should be extended or not in terms of exception contained in Rule 56 aforementioned; although the amended rules had not come into force. They were found ineligible for extension of their services and recommendations were made by the Full Court of the Rajasthan High Court that they be compulsorily retired. A Government order dated 23.3.1999 retiring the appellants herein with effect from 31.3.1999 was issued which was communicated to them by the Registrar General of the High Court in terms of a letter dated 26.3.1999. The appellants herein questioned the said order before the Rajasthan High Court. The High Court by reason of its impugned judgment upheld the validity of the said order, inter alia, holding that the High Court has the requisite jurisdiction to evaluate the performance of the appellants and come to the conclusion that the services of the appellants should not be extended from 58 to 60 years. The contention of the appellants that the question of extending the age of superannuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is in pari materia with Section 22 of the General Clauses Act, 1897. Section 24 of the Rajasthan General Clauses Act, 1955 reads thus :- 24. Making of rules, etc. and issuing of orders between passing and commencement of enactments : Where, by any Rajasthan Law, which is not to come into operation immediately on the passing thereof, a power is conferred to make rules, regulations, bye- laws or to issue orders with respect to the application of such law or with respect to the establishment of any court or office or the appointment of any judge or officer thereunder or with respect to the person by whom or the time when, or the place where or the manner in which or the fess for which any thing is to be done under such law, then that power may be exercised at any time after the passing of such law, but rules, regulations, bye-laws or orders so made or issued shall not take effect till the commencement of such law . The said provision clearly prescribes the limit and scope of the power given to the authorities concerned as the words with respect to have been used therein. We are, however, unable to accept the submission of the appellants that Rule 56 is not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Chief Election Commissioner, New Delhi and Others (1978) 1 SCC 405] . It may be true that mentioning of a wrong provision or omission to mention the correct provision would not invalidate an order so long as the power exists under any provision of law, as was submitted by Mr. Rao. But the said principles cannot be applied in the instant case as the said provisions operate into two different fields requiring compliance of different pre-requisites. It will bear repetition to state that in terms of Rule 53 of the Pension Rules, an 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 in lieu thereof had been given. Neither of the aforementioned conditions had been complied with. We also cannot accept the contention of Mr. Rao that in the case of Mata Deen Garg, the departmental proceedings could be kept pending despite the passing of the impugned order. The High Court had not passed any order in the departmental proceedings. It sought to invoke the jurisdiction which was conferred on the High Court and the State by reason of a statutory rule. A departmental proceeding can continue so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a discretionary relief to the applicant. Furthermore, this Court exercised its discretionary jurisdiction under Article 136 of the Constitution of India 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. [See S.D.S. Shipping Pvt. Ltd. vs. Jay Container Services Co. Pvt. Ltd. Ors. [2003 (4) Supreme 44]. Such a relief can be denied, inter alia, when it would be opposed to public policy or in a 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 of India is entitled to pass such order which will be complete justice to the parties. We have been taken through the annual confidential reports as against the appellants. Having gone through the same, we are of the opinion that it is not a fit case where this Court should exercise its discretionary jurisdiction in favour of the appellant. This Court in Brij Mohan Gupta's case (supra) has also refused to exercise its discretionary jurisdiction in favour of the appellant although the order of the High Court was found liable to be set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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