Holding

The compulsory retirement orders were illegal as they were made before the amended Rule 56 came into force and without compliance with Rule 53, and therefore are set aside, though the appellants must receive their retirement benefits.

Summary

The appellants, three members of the Rajasthan Higher Judicial Service, were compulsorily retired on 31 March 1999 under a notification that reduced the retirement age to 58 years, with an exception allowing extension to 60 years for officers deemed to have continued utility. They challenged the order, arguing that the amended Rule 56 of the Rajasthan Service Rules, which provided the exception, was not in force until that very date and therefore could not be applied retrospectively, and that the High Court had not complied with the procedural requirements of Rule 53 of the Rajasthan Civil Service (Pension) Rules. The Supreme Court held that the retirement orders were illegal because substantive orders cannot be made under a rule before its commencement and because the required notice/public‑interest test under Rule 53 was not satisfied. While the Court set aside the compulsory retirement, it directed that the appellants be paid all retirement benefits earned. The Court also affirmed that the High Court’s power under Article 235 to assess judicial officers cannot be used to bypass statutory requirements.

Issues considered

The validity of a compulsory retirement order issued under Rule 56 of the Rajasthan Service Rules when the amendment had not yet come into force.
Whether the exception in Rule 56 allowing extension of service to age 60 for judicial officers applies before the rule’s commencement.
Whether the High Court could order retirement without complying with the notice and public‑interest requirements of Rule 53 of the Rajasthan Civil Service (Pension) Rules, 1996.
Whether a pending departmental inquiry bars the retirement of a judicial officer.
The applicability of the All India Judges' Association judgments after the statutory rules were amended.
The entitlement of the appellants to retirement benefits despite the illegal order.

Legislation cited

Constitution of Indias. Article 136, s. Article 142, s. Article 226, s. Article 235, s. Article 32
Rajasthan Service Rules, 1951

Subjects

service lawcompulsory retirementjudicial officersRajasthan Service Rulespension rulesconstitutional article 235pre‑retirement assessmentdiscretionary jurisdiction

Judgment

A CHANDRA SINGH
v.
STATE OF RAJASTHAN AND ANR.

JULY 22, 2003

B [V.N. KHARE, CJ., S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.]

Service Law:

Rajasthan Service Rules, 1951 (as amended and notified)-Rule 56-
c Rajasthan Civil Service (Pension) Rules, 1996-Rule 53-Higher Judicial ,.
Service-Retirement-On attaining superannuation age-Rule 56 amended
by notification dated 27.6. 1998 raising retirement age to 60 years--Further,
by notification dated 28.12.1998 effective from 31.3.1999 retirement age
reduced to 58 years requiring government servants crossing 58 years to be
D retired on 31.3.1999, subject to the exception that the judicial officers
considered to have the potential for continued useful purpose by High Court,
retirement age would be 60 years-On facts, members attaining
superannuation age of 58 years before 31.3.1999, committee of High Court
finding that officer not possessing sufficient potentiality for extension of
service-Compulsory retirement order with effect from 31.3.1999-
E Sustainability-Held: Retirement action illegal in view of rule 56 amended
by notification dated 27.6.1998-Extension of superannuation age would
not arise and also review ofperformance on attaining age of 58 years-High
Court could not have initiated a proceeding, prior thereto under Rule 56 as
amended by notification dated 28.12.1998 as the orders affecting substantive
F right could be made under such law only after it comes into force and not
in anticipation thereof-However, on basis of annual confidential reports not
a fit case where this court should exercise its discretionary jurisdiction-
Further the continuation in service of persons of doubtful integrity not
desirable-Therefore, retirement not considered prima facie and per se as
punishment and they do not lose any part of their benefit earned during
G service-High Court and State Government directed to pay all retiral
benefits-Constitution of India, 1950-Articles 235, 226, 32 and 142.

In All India Judges' Association's case, while maintaining that the
normal age of superannuation of the judicial officers would be 60 years, it
was directed that a committee appointed by the Chief Justice of the High Court
H 674 J;
~
CHANDRA SINGH v. STATE OF RAJAS THAN 675
would review the records of the members to find out their potentiality before A
they attain the age of 58 years and those not found suitable, would be made to
compulsorily retire at 58. Thereafter, the statutory rule governing the age of
superannuation were made. Rule 53 of Rajasthan Civil Services (Pension)
Rules, 1996, provided for pre retirement assessment after completion of25
years of qualifying service or attaining the age of 50 years, whichever is B
earlier. Rule 56A of the Rajasthan Service Rules amended by notification dated
20.2.1995 provided that the retirement age of judicial officers having potential
for continued useful purpose would be to 60 years, while for others it was 58
years. By notification dated 27.6.1998, retirement age was raised to 60 years
for all government servants. Further by amendment to Rule 56 by notification
dated 28.12.1998 effective from 31.3.1999 retirement age was reduced to 58 C
years with a proviso that all government servants crossing 58 years would be
retired on 31.3.1999, subject to the exception that for the judicial officers
considered to have the potential for continued useful purpose by the High
Court, the retirement age would be 60 years while for others it would be 58
years.
D
Appellants are the members of the Rajasthan Higher Judicial Service.
Appellant C was to attain age of 58 years on 12.3.1999, Bon 19.9.1998 and
Mon 4.1.1999. Committee of three Judges considered the case of several
officers including appellants for giving them benefit of extension up to the
age of 60 years. Committee found that the appellants did not possess sufficient E
potentiality and utility so as to give them the benefit of extension of service
up to the age of 60 years. Full Court approved the same. Appellants were
retired from service on attaining the age of superannuation with effect from
31.3.1999. Appellants challenged the retirement order and the High Court
dismissed the writ petition. Hence the present appeals.
F
Appellants contended that they were entitled to continue in service till
they attained the age of 60 years, which right was vested in them under Rule
56 amended by notification dated 27.6.1998; that the said rule did not provide
for any pre-retirement assessment; that they could not have been retired after
they crossed the age of 58 years and before they attained the age of 60 years;
that the reliance on Rule 56 notified on 28.12.1998 is untenable as it was G
effective from 31.3.1999 and could not have provided for pre-retirement
assessment, prior thereto; that there is an "exception" clause in the rule
and the only construction possible is that the exception is intended to restrain
the applicability of the enacting clause to the excepted cases and that such a
construction alone would bring the rule in consonance with the judgment of H
676 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A this Court in All India Judges' Association cases; that the respondents have
not invoked the power under Rule 53 of the Pension Rules and the order of
23.3.1999 does not say so; that there can be no other mode of retirement for
judicial officer after he crosses the age of 58 years and before he attains the
age of 60; that the orders of 23.3.1999 are also not in conformity with the
B llnd All India Judges case that pre-retirement assessment should be made
well within the time before an officer attains 58 years by following the
procedure for compulsory retirement under the service rules; that the
expression "Government Servants" referred to in Rule 56 will not include
Judicial Officers; and that as M was facing a departmental inquiry, he cannot
be retired at the age of 58 years under the amended Rule 56.
c Respondent No.1-Rajasthan High Court contended that the A// India
Judges' Association case will not apply to the instant case, once the statutory
rules governing the superannuation of members of judicial service as well as
extension of service are made; that neither the Pension Rules nor the
exception to Rule 56 of the Rajasthan Service Rules permits continuance in
D office of an officer of doubtful integrity or incompetence or indolence or
inefficiency; and that the reliance placed on the All India Judges' Association
case that after a judicial officer has crossed the age of 58 years, he could not
be subjected to asse~sment of his performance and has a right to continue in
service till he attained the age of 60 years is untenable.

E Dismissing the appeals, the Court

HELD: I.I. The question of extending the age of superannuation till 60
years would not arise where the age of superannuation had been fixed at 60
years by Rule 56 amended by notification dated 27.6.1998 framed by the State.
F Further the All India Judges' Association's case would not apply due to the
statutory rules. The High Court, keeping in view the fact that the amended
rules were to come into force with effect from 31.3.1999, could not have
initiated a proceeding, prior thereto under Rule 56 as amended by notification
dated 28.12.1998 as the orders affecting substantive right could be made under
such law only after it comes into force and not in anticipation thereof.
G [691-C-D; 692-AI

1.2. The Rajasthan Service Rules, 1951 apply also to the judicial officers
in terms whereof the age of superannuation had been fixed at 60 years or 58
years, as the case may be. Exception provided for in Rule 56 also is a pointer
to the fact that the said Rules apply to the judicial officers. Unless the said
H
CHANDRA SINGH v. STATE OF RAJASTHAN 677
rules are per se applicable, the question of making any exception to the A
applicability thereof would not arise. It cannot be accepted that the said
exception runs contrary to the decisions of this Court in All India Judges
Association's case. The said exception has been provided in conformity with
the directions contained in said decision. 1693-F-G; 694-AJ

1.3. In terms of Rule 53 of the Rajasthan Civil Service (Pension) Rules, B
1996 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
and allowances in lieu thereof had been complied with. Compliance of pre-
requisites of such a rule, it is well-settled, is mandatory and not directory.
Neither of the aforementioned conditions had been complied with.1694-FJ C
Rajat Baran Roy and Ors. v. State of W.B. and Ors., [1999] 4 SCC 235
and Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New
Delhi and Ors., 11978] 1 SCC 405, relied on.

1.4. Article 235 of the Constitution ·enables the High Court to assess D
the performance of any judicial officer at any time with a view to discipline
the blacksheep or weed out the deadwood. This constitutional power of the
High Court cannot be circumscribed by any rule or order. [695-C-D]

State of Assam v. Ranga Mohammed, AIR (1967) SC 903; Shamsher v.
State of Punjab, AIR (1974) SC 2192 and High Court ofJudicature at Bombay E
v. Shirish Kumar Rangrao Patil, AIR (1997) SC 2637, referred to.

1.5. High Court and consequently this Court while exercising its extra-
ordinary jurisdiction under Articles 226 or 32 of the Constitution may not
strike down an illegal order although it would be lawful to do so. In a given
case, the High Court or this Court may refuse to extend the benefit of a F
discretionary relief to the appellant. Furthermore, this Court may exercise
its discretionary jurisdiction under Article 136 of the Constitution 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. Such a relief
can be denied, inter alia, when it would be opposed to public policy or in a G
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
is entitled to pass such order which will do complete justice to the parties.
(695-H; 696-A-C(

Teherakhatoon v. Salambin Mohammad, (1999( 2 SCC 635; Champa/al H
678 SUPREME COURT REPORTS (7003) SUPP. I S.C.R.

A Sinai v. CIT, West Bengal, AIR (1970( SC 645 and S.D.S. Shipping Pvt. ltd v.
Jay Container Services Co. Pvt. ltd and Ors., (2003( 4 Supreme 44, relied
on.

1.6. A departmental proceeding can continue so long as the employee is
in service. In the event, a disciplinary proceeding is kept pending by the
B employer the employee cannot be made to retire. lhere must exist specific
provision in the pension rules in terms whereof, whole or part of the pension
can be withheld or withdrawn wherefor a proceeding has to be initiated.
Furthermore, no rule has also been brought to notice providing for
continuation of such proceeding despite permitting the employee concerned
C to retire. In 'bsence of such a proceeding, it cannot be accepted that the
departmental proceedings against the appellant M could continue.
(694-H; 695-A-BI

All India Judges' Association and Ors. v. Union ofIndia and Ors., f1992)
1 SCC ll9; All India Judges' Association and Ors. v. Union of India and
D Ors., (Review case) (1993) 4 SCC 288; Rajat Baran Roy and Ors. v. State of
W.B. and Ors., (1999] 4 SCC 235; High Court of Judicature at Allahabad
through Registrar v. Sarnam Singh and Anr., (2000) 2 SCC 339; Bishwanath
Prasad Singh v. State of Bihar and Ors., [2001( 2 SCC 305; High Court of
Judicature at Bombay through Registrar and Anr. v. Brij Mohan Gupta (Dead)
through lrs. and Anr., [2003) 2 SCC 390; Boppanna Venkateswaraloo and
E Ors. v. Superintendent, Central Jail, Hyderabad State, (1953] SCR 905;
Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi
and Ors., [1978] l SCC 405; Teherakhatoon v. Salambin Mohammad, [1999]
2 SCC 635; High Court of Punjab and Haryana through R.G. v. lshwar Chand
Jain, [1999] 4 SCC 579; Nepal Singh v. State of UP. and Ors., AIR [1985]
p SC 84 and S. Paradesi Thyagarajan v. High Court of Kera/a, [1998] 2 K.L.T.
967, referred to.

2. In the instant case, the actions on the part of the High Court or the
State in compulsorily retiring the appellants herein were illegal. Having gone
through the annual confidential reports of the appellants it is not a fit case
G where this court should exercise its discretionary jurisdiction in favour of
the appellant. Further the Committee of three Judges observed that the
appellants do not possess sufficient potentiality and utility to give them benefit
of extension of service. The nature of judicial service is such that it cannot
afford to suffer continuance in service of persons of doubtful integrity or who
H have lost their utility. Therefore, the appellants so retired do not lose any
CHANDRA SINGH r. STATEOF RAJASTI1AN [DR. AR. LAKSHMANAN, J.] 679

part of their benefit that they have earned during their service and it involves A
no penal consequence and the retirement is not considered prima facie and
per seas punishment. High Court and the State Government are directed to
pay all retiral benefits to the appellants as expeditiously as possible, preferably
within three months. 1696-C-H; 697-A, Bl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5576 of2000. B
From the Judgment and Order dated 18.8.2000 of the Rajasthan High
Court in D.B.C.W.P. No. 1589of1999.

WITH
c
C.A. Nos. 6078 and 7441 of2000.

K.V. Viswanathan, Atul Kumar Sinha for K.V. Venkataraman for the
Appellants in C.A. Nos. 5576 & 7441 of 2000.

P.P. Rao, A.P. Dhamija for Sushi! Kumar Jain for the Respondents. D
Ranji Thomas, Ms. Bharati Upadhyaya for V.N. Raghupathy, Ms. Sandhya
Goswami for the State of Rajasthan.

In-person for C.A. No. 6078/2000.
E
The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, J. The questions involved in these three
appeals are identical and they are being disposed of by this common judgment.

By order dated 23.03.1999, the appellants, who are the officers of the p
Rajasthan Higher Judicial Service, were retired from service w.e.f. 31.03.1999
on attaining the age of superannuation. The appellants, who received the
order, challenged the same before the High Court of Rajasthan by filing writ
petitions which were disposed of by a Division Bench of the said Court. The
two learned Judges who constituted the Division Bench rendered two
concurrent judgments. While the conclusion was the same, the reasons were G
different. While one learned Judge held that the order of 23.03.1999 retiring
the appellants was sustainable under the Rajasthan Service Rules, 1951, the
other learned Judge held that the order was sustainable under the All India
Judges' Association and Ors. v. Union of India and Ors., (Review case)
H
680 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A reported in [1993] 4 sec 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
B 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
C 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
D the officers in accordance with the decision of this Court. The Committee, on
examination of the service record, character roll, quality of their work, disposal,
integrity, general reputation and their potentiality and utility found that the
appellants are -not fit to be given the benefit of eYtension. We have perused
the report of the Committee. The Committee had extensively gone through the
entire record with minutest details and have come to the conclusion that these
E appellants are not fit to be given the benefit of extension. The Committee has
found that Shri Mata Deen Garg, Shri Bhanwar Lal Sharma and Shri Chandra
Singh are found not to possess sufficient potentiality and utility so as to give
them the benefit of extension of service up to the age of 60 years. One of the
appellants Shri Mata Deen Garg appeared in- person and argued his case. The
F Committee was of the view that the officer was not fit to be given the benefit
of extension and that his conduct can be judged from the uncontrovertible
facts emerging from the disciplinary proceedings pending against him also.
In these proceedings, he has admitted that Shri Ramesh Garg was his younger
brother and Shri Ramesh Garg stated without being controverted in cross-
examination that he was looking after the interests of the claimants in the
G Motor Accident claim case which was decided by Shri Mata Deen Garg. The
charges that Shri Mata Deen Garg himself was the counsel for the claimants
in this case and he scored out his name and signatures from Vakalatnama and
other documents to conceal the fact of his being the counsel in that case are
yet to be found proved. But all the same the fact remains that he decided a
H case in which his brother was interested. Another charge in the same
CHANDRA SINGH v. STATEOF RAJASTHAN [DR. AR. LAKSHMANAN. J.] 68)

disciplinary proceedings is about harassment of a lady judicial officer by Shri A
Mata Deen Garg. Tho"ugh the enquiry is not yet over but all essential facts
relating to detention of the lady officer at his residence till late in the night
are admitted by Shri Garg except the harassment part. The Committee was of
the view that the admitted facts themselves are sufficient to disentitle Shri
Garg from continuing in service beyond 58 years of age. So far as Shri J
Bhanwar Lal Shanna, appellant no.2 is concerned, the Committee found that
the integrity of the said officer is questionable and for several years his
integrity certificate was withheld." It was also found thbt h~ was not a hard
worker and painstaking and found 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
c
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. D
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.
E
Vide Notification dated February 20, 1995 following exception to Rule
56A of the Rajasthan Service Rules was substituted after sub-rule (I):

"Exception"

The retirement age of officers of Rajasthan Judicial Services and F
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."

Vide Notification dated June 27, 1998, existing Rules 56 and 56A of the G
Rajasthan Service Rules was substituted by the following Rule 56.

"56. The date of compulsory retirement of a Government servant would
be the afternoon of the last day of the month in which he attains the
age of 60 years.
H
682 SUPREME COURT REPORTS (2003) SUPP. I S.C.R.

A Provided that the provisions of age of compulsory retirement as
contained in this rule shall not be applicable in the case of Government
Servants who are in service after attaining the age of compulsory
retirement either on re-employment or on extension in service.

Provided further that no Government servant shall be granted
B extension in service beyond the age of 60 years.

Note:- I. A Government servant whose 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 60 years.
2. In case the last day of the month happens to be a closed
c holiday, even then the Government servant should formally
relinquish charge of the office in the afternoon of that day."

Vide Notification dated December 28, 1998 (came into force w.e.f.
31.03.1999) the aforequoted quoted Rule 56 was again substituted thus:-
D "56. The date of compulsory retirement of a Government servant other
than a Government servant of Class IV would be the afternoon of the
last day of the month in which he attains the age of 58 years and the
date of compulsory retirement of a Government Servant of Class IV
would be the afternoon of the last day of the month in which he
E attains the age of 60 years.

Provided that the Government servants other than Class IV who
have crossed the age of 58 years shall also be compulsorily retired on
31.03.1999.

Exception:
F
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.
G
Note:- I. A Government servant whose 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 compulsory
retirement.

H 2. In case the last day of the month happens to be a closed
CM ANDRA SINGH v. STA TEOF RAJASTHAN [DR. AR LAKSHMANAN, .I] 683
holiday, even then the Government servant should formally A
relinquish charge of the office in the 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 of25 years qualifying service. B
( 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 C
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 D
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 E
to have retired on such publication, if he has not been served with
the retirement order earlier.

EXPLANATION-For the purpose of this rule, the expression
"appointing authority" shall mean the authority which is competent
to make appointments to the service or post from which the F
Government Servant retires."

The order of retirement served on the respective appellants reads thus:

We reproduce one order for sample.
G
" I am directed to send herewith Government Order No. 27(27) Judi/
94 dated 23.3.99 retiring you from service with effect from 3 l.3.99(AN)
on attaining the superannuation age for information and necessary
action."

The Governor ofRajasthan has·also by his order dated 23.03.1999 was H
684 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A pleased to retire the appellants on attaining the superannuation age on
31.03.1999 (afternoon).

We heard Shri K. V. Viswanathan, learned counsel for the appellant, in
Civil Appeal Nos. 5576 and 7441 of2000 and the appellant in Civil Appeal No.
6078 in-person. The learned counsel for the appellants submitted that the
B appellants were entitled to continue in service till they attained the age of 60
years, which right was vested in them under Rule 56 of the Rajasthan Service
Rules, 1951, as amended and notified on 27.06.1998 and that the said rule did
not provide for any pre-retirement assessment and this was the only rule in
force on 23.03.1999, when orders retiring them were passed. It was also
C pointed out that the appellant Shri Chandra Singh completed 58 years on
12.03.1999 and the appellant Shri Bhanwarlal Sharma completed 58 years on
20.09.1998 and, therefore, they could not have been retired after they crossed
the age of 58 years and before they attained the age of 60 years and such
orders are ultra vires of Rule 56 of the Rajasthan Service Rules, 1951, as
amended and notified on 27.06.1998. In support o.f the above contention, the
D learned counsel placed reliance on three rulings of this Court being Rajat
Baran Roy and Ors. v. State ofW.B. and Ors., (1999] 4 sec 235; High Court
of Judicature at Allahabad through Registrar v. Sarnam Singh and Anr.,
(2000] 2 sec 339 and Bishwanath Prasad Singh v. State of Bihar and Ors.,
(2001] 2 SCC 305. Shri Viswanathan further urged that the reliance placed by
E the respondents on the Rajasthan Service Rules, 1951 as amended and notified
on 28.12.1998 is entirely untenable as the rule itself indicates that it was to
come into force with effect 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.

p 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
G on Boppanna Venkateswara/oo and Ors. v. 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,
H 1951 as amended and notified on 28.12.1998 and that the proviso to the said
CHANDRA SINGH v. STATEOF RAJASTHAN [DR. AR. LAKSHMANAN, J.] 685
rule does not apply to Judicial Officers, since the expression "Officers of A.
Rajasthan Judicial Service and Rajasthan Higher Judicial Services" are used
in contra distinction to the expression "Government Servants". Elaborating
further, he contended that there is an "exception" clause in the rule and the
context in which ·the exception occurs the only construction possible is that
the exception is intended to restrain the applicability of the enacting clause B
to the excepted cases and that such a construction alone would bring the rule
in consonance with the judgment of this Court in All India Judges' Association
cases and that any other construction would render the proviso ultra vires
the All India Judges' Cases.

He would further submit that Rule 53 of the Rajasthan Civil Service C
(Pension) Rules, 1997, provides for compulsory retirement on completion of
25 years of qualifying service and stated that at any time after a Government
Servant has completed 25 years qualifying service or has attained the age of
50 years whichever is earlier, he may be required by the authority to retire in
the public interest and in such a case the appointing authority should give
a notice in writing to a Government Servant at least 3 months before the date D
on which he is required to retire in the public interest or 3 months pay and
allowances in lieu of such notice. According to the learned counsel for the
appellant, this power has not been invoked by the respondents and the order
of 23.03.1999 does not say so. It is further contended that there can be no
other mode of retirement for Judicial Officer after he crosses the age of 58 E
years and before he attains 60 and the very purpose of the Judgment in the
All India Judges cases would be defeated and the aim of uniformity would
be a far cry if retirement other than by following the procedure for compulsory
retirement, is permitted after the officer crosses 58 years and before he attains
60 years. He relied on Bishwanath Prasad Singh 's case (supra).
F
Concluding his argument, Shri Viswanathan submitted that the orders
of 23.03.1999 are also not in conformity with the Ilnd All I!Jdia Judges case
which clearly provides that pre-retirement assessment should be made well
within the time before an officer attains 58 years by following the procedure
for compulsory retirement under the service rules. In view of the fact that
rules were framed and the relevant rule being the rule as notified on 27.06.1998, G
those rules alone would govern the situation. Hence he submitted that the
reasoning given by one of the Judges in this aspect is incorrect.

Mr. Mata Deen Garg who argued in-person, after adopting the arguments
of the learned counsel for the appellants, submitted that the expression H
686 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A "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. v. /shwar Chand Jain and Anr., [1999] 4 SCC 579, for the
proposition that as the appellant was facing departmental inquiry, he cannot
B be retired at the age of 58 years. He also cited the decision of this Court in
Nepal Singh v. State of U.P. and Ors., AIR 1985 SC 84.

Mr. P.P. Rao, learned senior counsel appearing for the Rajasthan High
Court, respondent No. I, submitted that the All India Judges' Association
C 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
purpose, up to 60 yea~s of age. He took us through the statutory rules which
have been made from time to time and also the various rulings relied on by
D him. He also submitted that the object of the assessment under Rule 53 of
the Rajasthan Civil Services (Pension) Rules, 1996 and in tenns of the exception
to the impugned Rule 56 is broadly the same, namely, to judge the fitness of
the officer to be continued in service and, if not, retire him. According to Mr.
Rao, both rules sub-serve public interest. He would submit that neither Rule
E 53 of the Pension Rules nor the exception to Rule 56 of the Rajasthan Service
Rules permits continuance in office of an officer of doubtful integrity or
incompetence or indolence or inefficiency. Mr. Rao, in support of his
contentions, placed strong reliance on the judgments of this Court in Rajat
Baran Roy and Others case (supra), Sarnam Singh and Another case (supra)
and Bishwanath Prasad Singh 's case (supra) and submitted that the reliance
F placed on the All India Judges' Association cases by the appellants for the
proposition that after a judicial officer has crossed the age of 58 years, he
could not be subjected to assessment of his performance and has a right to
continue in service till he attained the age of 60 years is, therefore, untenable.

Mr. Rao also placed reliance on the judgment of a Division Bench of
G the Kerala High Court which upheld the order of retirement passed in the case
of S. Paradesi Thyagarajan v. High Court of Kera/a, (1998) 2 K.L.T. 967
equivalent to 1998 (2) K.L.J. 414 and the said judgment has been affinned by
this Court by its order dated 20.02.2003 in Civil Appeal No. 346 of 1999.

We have given our thoughtful consideration for the arguments advanced
H
CHANDRA SINGH v. STATEOF RAJASTHAN [DR. AR. LAKSHMANAN,J.] 687
by the counsel appearing for the respective parties and also of the appellant A
in- person. We have carefully perused the relevant rules and the Minutes of
the Committee dated 19.02.1999, the resolution by the Full Court· and other
relevant records and the judgments cited by both the sides.

All India Judges Association's case (supra) would not have had any 'B
application in the event by reason of the statutory rules the age of
superannuation would have automatically been extended to 60 years. On the
other hand, if by reason of the statutory rules governing the field the age of
superannuation of the members of the judicial service is 58 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 C
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 D
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 E
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 F
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.f. 31.03 .1999 whereby the age ofretirement G
was reduced to 58 years with a proviso requiring all government
servants who have crossed the age of 58 years to be retired on
31.03.1999, subject to the exception that in the case of judicial
officers who are considered to have the potential for continued
useful purpose by the High Court, the age of retirement would
be 60 years while for others, it would be 58 years. H
688 SUPREME COURT REPORTS (2003) SUPP. I S.C.R.

A As by reason of the purported amendment in Rule 56 aforementioned,
the age of superannuation has been reduced to 58 years, the decision of this
Court in All India Judges Association's case (supra) would become applicable
in the instant case. The following three rulings can be usefully referred to in
the present context.
B I. Rajat Baran Roy and Ors. v. State of W.B. and Ors., [1999] 4 SCC
235 at 240

It is observed in para I 0 of the above judgment that the direction issued
would cease to exist when appropriate rule enhancing the retirement age of
C the judicial officer to 60 years is made and after the directions in the 1993 case
in the case of such States which had framed the rules consequent upon which
the members of the subordinate judiciary in those States became entitled to
continue in service 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 other
words, the enhancement of retirement age in those States will have de hors
D the. directions of this Court and will be subject only to the terms of the rules
applicable and in such cases, the pre-retirement assessment will not be
applicable unless the same is specifically provided under the rules.

2. High Court of Judicature at Allahabad through Registrar vs. Sarnam
E Singh and Another, [2000] 2 sec 339 at 346.

Th is Court in para 13 has observed as under:

"These observations indicate that the procedure indicated by this
Court for evaluating the work, performance and condu.ct of Judicial
F Officers, before allowing them to continue in service up to the age of
60 years, was evolved as a temporary measure and was not to be
adopted as a permanent feature. The choice was thus left to the
appointing authority. If the appointing authority itself had made
necessary service rules extending the age of retirement, the above
procedure was to be given up as the Officers would continue in
G service in accordance with the service rules 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
H the directions issued in the review petition, were found suitable for
the benefit of extended service."
CHANDRA SINGH v. STATEOF RA.IASTHAN [DR. AR LAKSHMANAN, J. J 689

'
~. Bishwanath Prasad Singh v. State of Bihar and Ors., (2001] 2 A
sec 305 at 315
j
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 B
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 c
rules, if amended, the right to hold the judicial office shall be a
statutory right subject to satisfying the requirements, if any,
contemplated by the rules. Till then, the extended age of superannuation
of 60 years shall be a benefit available to judicial officers subject to
their satisfying the test of suitability at the evaluation or assessment D
to be made by the High Courts in accordance with the judgment of
the Supreme Court. Such evaluation is independent of and other than
an assessment undertaken for compulsory retirement in public interest
which could be resorted to earlier or later also. The abovesaid view
finds support from a number of decisions rendered by this Court
which may be referred to briefly." E

The views which we have taken are in consonance with the decision
of this Court in the cases referred to hereinbefore. Times without number this
Court pointed out the difference between a judicial service and other services.
Keeping in view the rigours, constraints and difficulties faced by the Judicial
Officers in discharge of their duties in All India Judges' Association v. Union
F
of India and Ors., (1992] I SCC 119, this Court issued a direction to all the
States and the Union Territories to the effect that the age of superannuation
of the judicial officers be fixed at 60 years with effect from 31.12.1992. A large
number of review petitions came to be filed and in All India Judges'
Association case (review case) (supra) while maintaining that the normal age G
of superannuation of the judicial officers would be 60 years, but it was
~
directed that a committee appointed by the Chief Justice would review the
---<' records of the members of the judicial service with view to find out their
potentiality before they attain the age of 58 years and those who, in the
opinion of the High Court are not found suitable, would be made to
H
t-
690 SUPREME COURT REPORTS (2003) SUPP. I S.C.R.

A compulsorily retire at the age of 58 years. In other words, the services of
those members of the judicial service would not be extended to 60 years. It
was directed :

"(b) The direction with regard to the enhancement of the I
superannuation age is modified as follows :
B
While the superannuation age of every subordinate judicial officer
shall stand extended up to 60 years, the respective High Courts
should, as stated above, assess and evaluate the record of the judicial
officer for his continued utility well within time before he attains the
age of 58 years by following the procedure for the compulsory
c retirement under the Service rules applicable to him and give him the
benefit of the extended superannuation age from 58 to 60 years only
ifhe is found fit and eligible, he should be compulsorily retired on his
attaining the age of 58 years.

D 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
E 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
F 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
continuing in service till the enhanced superannuation age of 60 years
G with the liability to compulsory retirement at the age of 58 years.

Those who have crossed the age of 57 years and those who cross
the age of 58 years soon after the date of this decision will exercise
their option within one month from the date of this decision. If they
do not do so, they will be deemed to have opted for continuing in
H
CHANDRA SINGH "· STATEOF RA.I AS THAN [DR. AR. LAKSHMANAN . .I.] 691

service till the age of 60 years. In that case, they will also be subjected A
to the review for compulsory retirement, if any, notwithstanding the
fact that there was not enough time to undertake such review before
they attained the age of 58 years. However in their case, the review
should be undertaken within two months from the date of the expiry
of the period given to them above for exercising their option, and if B
found unfit, they should be retired compulsorily according to the
procedure for compulsory retirement under the Rules.

Those judicial officers who have already crossed the age of 58 years,
will not be subjected to the review for compulsory retirement and will
continue in service up to the extended superannuation age of 60 years C
since they have had no opportunity to exercise their option and no
review for compulsory retirement could be undertaken in their case'
before they reached the age of 58 years.

Indisputably pursuant to or in furtherance of the said direction, Rules
56 and 56A of the Rajasthan Service Rules were substituted by the State of D
Rajasthan in terms of the notification dated 27.6.1998 in terms whereof the
date of compulsory retirement (date of superannuation) of a Government
servant would be the last day of the month in which he attains the age of
60 years. Rules 56 and 56A, however, were amended by a notification dated
28.12.1998 which have already been extracted above. The said rules, however,
were to come into force on and from 31.03.1999. E
The appellants herein were members of the Rajasthan Judicial Service.
Chandra Singh (Appellant in C.A. No.5576 of2000 and Bhanwar Lal Sharma
(Appellant in C.A. No.7441 of2000) attained the age of 58 years on 12.3.1999
and 19.9.1998 respectively while Mata Deen Garg (Appellant in C.A. 6078 of F
2000) attained the age of 58 years on or about 4.1.1999.

Thus, on 31.3.1999 all of them crossed the age of 58 years. In terms of
the direction of this Court, therefore, their cases could not have 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 G
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
H
692 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A 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
B 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.

C The contention of the appellants that the question of extending the age
of superannuation till 60 years would not arise where the age of superannuation
had been fixed at 60 years by the rules framed by the State and as thence
existing itself is correct.

The law in this behalf has recently been laid down in High Court of
D Judicature at Bombay through Registrar and Anr. v. Brij Mohan Gupta
(Dead) through L.Rs. and Anr., (2003] 2 SCC 390 in the following terms

"Rule 10(3)(c) of the Maharashtra Civil Services (Pension) Rules, 1982
is applicable only to direct appointees from the Bar. By reason thereof,
the benefit of pension has been extended to them so as to enable them
E to complete the minimum qualifying service often years subject to the
outer limit of 60 years of age. The normal age of superannuation of
such an officer would either be completion of ten years of service or
55 years, whichever is earlier. In that view of the matter, the respondent
would have reached the age of superannuation on attaining the age
of 55 years. He, however, in view of the benefit conferred in terms of
F
Judges' case, as referred to herein before, was to retire at the age of
60 years but such benefit was subject to the conditions laid down
therein. Only in the event the age of superannuation of the judicial
officers is 60 years under the Service Rules, the question of review
of his performance on attaining the age of 58 years would not arise;
G but when under the Service Rules applicable to the judicial officers
the age of superannuation is 58 years or below, he would be entitled
to the benefit of the judgment, in which event the limitations of
applicability thereof would also squarely apply."

We are bound by the said decisions.
H
CHANDRA SINGH v. STATEOF RAJASTHAN [DR. AR. LAKSHMANAN,J.] 693
The impugned orders, therefore, could not have been passed in terms A
of the 'Exception' cont;fned in Rule 56 of the Rajasthan Service Rules. Further
contention of the appellants to the effect that the High Court, keeping in view
the fact that amended rules were to come into force with effect from 31.3. 1999,
could not have initiated a proceeding, prior thereto also appears to be correct.
This Court in Boppanna Venkateswaraloo and Ors., (supra) categorically
held that the orders affecting substantive right could be made under such law B
only after it comes into force and not in anticipation thereof.

At this juncture, it is profitable to take note of the provision of Section
24 of the Rajasthan General Clauses Act, 1955 which is in pari materia with
Section 22 of the General Clauses Act, 1897. C
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 D
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 E
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 F
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 to the judicial officers at all as no
other rules fixing the age of judicial officers has been placed before us. The
appellants themselves have relied upon the un-amended Rule 56. The Rajasthan
Service Rules, 1951 apply also to the judicial officers in terrns whereof the age G
of superannuation had been fixed at 60 years or 58 years, as the case may
be. Exception provided for in Rule 56 of the said Rules also is a pointer to
the fact that the said Rules apply to the judicial officers. Unless the said rules
are per se applicable, the question of making any exception to the applicability
thereof would not arise. In other words, the exclusionary clause contained in H
694 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A the exception points out to the applicability of the rules and thus it must be
held that the members of the judicial service come within the purview thereof.
The contention of the appellants to the effect that the said exception runs
contrary to the decisions of this Court in All India Judges Association's case
(supra) is not correct. The said exception, in our opinion, has been provided
B in conformity with the directions contained in said decision.

This takes us to the question as to whether the action of the High Court
in making the assessment of the performance of the appellants prior to
31.3.1999 stand the scrutiny of Rule 53 of the Rajasthan Civil Service (Pension)
Rules, 1996. In a given case, the said rule may be taken recourse to but the
C High Court never took any stand that its action was justified thereunder. Ex
facie the said rule is not applicable inasmuch as it has never been the
contention of the respondents that the impugned order had been passed in
public interest or other pre-requisite therefor, namely, giving of three months'
notice in writing to the Government servant before the date on which he is
required to retire in public interest or three months' pay and allowances in
D lieu thereof, had been complied with. Compliance of pre-requisites of such a
rule, it is well-settled, is mandatory and not directory. Such a plea has expressly
been negatived by this Court. [See Rajat Baran Roy's case (supra) - paras 13
to 16]. It is fairly well-settled, that the legality or otherwise of an order passed
by a statutory authority must be judged on the face thereof as the reasons
E contained therein cannot be supplemented by an affidavit. (See Mohinder
Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors.,
(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
F 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
G 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
H was conferred on the High Court and the State by reason of a statutory rule.
CHANDRA SINGH 1·. STATEOF RAJAS THAN [DR. AR. LAKSHMANAN, J.] 695
A departmental proceeding can continue so long as the employee 1s m A
service. In the event, a disciplinary proceeding is kept pending by the employer
the employee cannot be made to retire. There must exist specific provision in
the pension rules in terms whereof, whole or a part of the pension can be
withheld or withdrawn wherefor a proceeding has to be initiated. Furthermore,
no rule has also been brought to our notice providing for continuation of B
such proceeding despite permitting the employee concerned to retire. In
absence of such a proceeding, the High Court or the State cannot contend
that the departmental proceedings against the appellant Mata Deen Garg
could continue.

We have, therefore, no option but to hold that the actions on the part C
of the High Court or the State in compulsorily retiring the appellants herein
were illegal.

Article 235 of the Constitution of India enables the High Court to
assess the performance of any judicial officer at any time with a view to
discipline the blacksheep or weed out the deadwood. This constitutional D
power of the High Court cannot be circumscribed by any rule or order. We
can usefully refer to some of the leading cases on Article 235.

I. State of Assam v. Ranga Mohammed, AIR (1967) SC 903 (5
Judges)
E
2 Shams her v. State of Punjab, AIR ( 1974) SC 2192 (7 Judges)

3. High Court of Judicature at Bombay v. Shirish Kumar Rangrao
Patil, AIR (1997) SC 2637.

However, our aforementioned findings did not lead to a conclusion that F
the appellants would not be entitled to a discretionary relief.

In any event, even assuming that there is some force in the contention
of the appellants, this Court will be justified in following Taherakhatoon v.
Salambin Mohammad, [ 1999] 2 SCC 635 wherein this Court declared that even
if the appellants contention is right in law having regard to the overall G
circumstances of the case, this Court would be justified in declining to grant
relief under Article 136 while declaring the law in favour of the appellants.

Issuance of a Writ of Certiorari is a discretionary remedy. [See Champa/al
Binani v. CIT, West Bengal, AIR (1970) SC 645. The High Court and H
696 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A consequently this Court while exercising its extra-ordinary jurisdiction under
Articles 226 or 32 of the Constitution of India may not strike down an illegal
order although it would be lawful to do so. In a given case, the High Court
or this Court may refuse to extend the benefit of 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
B 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 v. Jay
Container Services Co. Pvt. Ltd and 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
C Court also in exercise of its jurisdiction under Article 142 of the Constitution
of India is entitled to pass such order which will 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
D 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 aside being
not in accordance with law.
E This Court said that this principle applies to all kinds of appeals admitted
by special leave under Article 136, irrespective of the nature of the subject-
matter. So even after the appeal is admitted and special leave is granted, the
appellant must show that exceptional and special circumstances exist, and
that, if there is no interference, substantial and grave injustice will result and
F that the case has features of sufficient gravity to warrant a review of the
decision appealed against on merits. So this Court may declare the law or
point out the lower Courts error, still it may not interfere if special circumstances
are not shown to exist and the justice of the case on facts does not require
interference or if it feels the relief could be moulded in a different fashion.

G The observations made in para 15-20 of the Teherakhatoon (supra) can
be usefully applied to the facts and circumstances of the case on hand.

In the instant case, we are dealing with the higher judicial officers. We
have already noticed the observations made by the committee of three Judges.
H The nature of judicial service is such that it cannot afford to suffer continuance
CHANDRA SINGH v. STATEOF RAJASTHAN [DR. AR. LAKSHMANAN, J.] 697
in service of persons of doubtful integrity or who have lost their utility. A

In the instant case, the appellants, so retired, does not lose any part
of their benefit that they have earned during their service and it involves no
penal consequence and in our view the retirement is not considered prima
facie and per se as punishment.
B
W,e, therefore, would although dismiss the appeals, but we would direct
the Higl;i Court and the State Government to pay all reti:al benefits to the
appellants herein as expeditiously as possible preferably within a period of
three months from the date of communication of this order. No Costs.

N.J. Appeals dismissed.