Holding

The Supreme Court held that Judges' Cases I and II subrogated Rule 10(3)(c), invalidating the High Court's order allowing continuation, but on the facts the appellant was deemed to have retired after ten years of service and his retirement benefits were payable.

Summary

Brij Mohan Gupta, a judge appointed directly from the Bar, was ordered to retire at age 58 by the Bombay High Court after an adverse committee report, despite his claim under Rule 10(3)(c) of the Maharashtra Civil Services (Pension) Rules, 1982 that he could serve until completing ten years of qualifying service. The High Court had allowed his continuation until the ten‑year mark, but the State appealed. The Supreme Court held that the Judges' Cases I and II had subrogated Rule 10(3)(c), rendering the High Court's order untenable. Nevertheless, on the peculiar facts that the judge had died, the Court deemed him to have retired after completing ten years of service and ordered that his retirement benefits be paid accordingly. The appeal was dismissed with these observations.

Issues considered

Whether Rule 10(3)(c) of the Maharashtra Civil Services (Pension) Rules, 1982, remains applicable after the Supreme Court's Judges' Cases I and II.
Whether a High Court can permit a judicial officer to continue in service beyond age 58 on the basis of Rule 10(3)(c).
Whether the committee’s adverse report and the retirement order are valid under the Judges' Cases.
Whether the appellant is entitled to retirement benefits as if he had completed ten years of service despite earlier retirement.

Legislation cited

Maharashtra Civil Services (Pension) Rules, 1982s. Rule 10(3)(c), s. Rule 53

Subjects

service lawjudicial serviceretirement ageJudges' Casespension rulescontinuation of servicecommittee reviewsuperannuationdirect appointment from Bar

Judgment

A HIGH COURT OF JUDICATURE AT BOMBAY THROUGH
REGISTRAR AND ANR.
v.
BRIJ. MOHAN GUPTA (DEAD) THROUGH LRS. AND ANR.

JANUARY 23, 2003
B
[V.N. KHARE, CJI., S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.]

Service Law:
c Judiciary-Higher Judicial Service-Continuing ofan HJ.S. Officer in
service upto 60 years of age-Maharashtra Higher Judiciary Service-Officer
not completing 10 years' qualifying service at the age of superannuation-
Consideration for continuing the officer in service till 60 years-Committee
constituted by High Court as per Judge's Case-II after scrutinising service
D record of the officer recommending his retirement at 58 years-Order of
retirement issued-Writ petition by officer-High Court allowing the claim of
officer that under r.10{3)(c) he was entitled to continue till completion of JO
years' qualifying service in order to get benefit of r.53-Held, by virtue of
Judges Case-I and Judges Case-II, r.10(3)(c) stood subrogated-Only in the
event the age of superannuation of judicial officers is 60 years under the
E service Rules, the question of review of his performance on attaining the age
of 58 years would not arise-But when under the relevant service Rules the
age of superannuation is 58 years or below, the officer would be entitled to
the benefit of judgment in Judges Case-II in which event the limitations of
applicability thereof would also squarely apply-Recommendation of the
p committee and administrative order passed by High Court were strictly in
terms of Judges Case-I and Judges Case-II-Judgment of High Court set
aside-However, in view of peculiar facts and circumstances of the case,
officer held to have retired on completion of I 0 years, service and retiral
benefits would be payable accordingly-Maharashtra Civil Services (Pension)
Rules, 1982-rr.10(3) (c} and 53..
G
All India Judges' Association and Ors, v. Union of India and Ors.,
[1993) 4 SCC 288 (Judges Case-II) and Al/ India Judges' Association and
Ors. v. Union of India and Ors., (1992) 1 SCC 119 (Judges Case-I), relied
on.

H 532
HIGH COURT OF BOMBAY v. BRIJ. MOHAN GUPTA 533

Maharashtra Civil Services (Pension) Rules, 1982-rr. IO(J)(c) and 53- A
In view of Judges Case-I and Judges case-II. r.10(3)(c) stood subrogated

All India Judges' Association and Ors.· v. Union of India and Ors.
(1992) 1 SCC 119 and All India Judges' Association and Ors. v. Union of
India and Ors., (1993) 4 SCC 288, referred to.
B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 137/1999.

From the Judgment and Order dated 30.4.98 of the High Court of
Bombay in WP 1210/97.

U.U. Lalit, S.S. Shinde, V.N. Raghupathy, K.B.S. Rajan, Anil Kumar C
Sinha, P. Narasimhan and Naresh Kumar for the appearing parties.

The Judgment of the Court was delivered by

C.A. No. 137/1999
D
The respondent herein Brij Mohan Gupta was born on 2nd July, 1939.
He was directly appointed from the Bar as a Judge of City Civil & Sessions
Court, Bombay (Maharashtra Higher Judicial Service). He assumed charge
on 4th November, 1988. In normal course, the respondent would have
completed I0 years of service on 4th November, 1998. He would have attained
the age of 58 years on 2nd July, 1997 and the age of 60 years on 2nd July. E
1999.

The High Court of Bombay, in view of the decision of this Court in All
India Judges' Association and Ors. v. Union of India and Ors., (1993] 4 SCC
288 (hereinafter referred to as "Judges Case-II"), appointed a Committee to
review the case of the respondent for giving him the benefit of continuity in F
service till the age of 60 years. The Committee made an adverse report
against the respondent and recommended that he may be made to retire on
attaining the age of58 years. The High Court, in view of the recommendation
of the Committee, issued an order on 30th July, 1997, retiring the respondent
from service w.e.f. 31st July, 1997. Aggrieved, the respondent filed a petition G
under Article 226 of the Constitution before the Bombay High Court.

The case of the respondent before the High Court was that under Rule
10(3)(c) of the Maharashtra Civil Services (Pension) Rules, 1982, he was
entitled to continue till completion of 10 years' qualifying service which was
necessary to entitle him to get the benefit of Rule 53 of the Rules. The High H
534 SUPREME COURT REPORTS [2003] I S.C.R.

A Court accepted the said argument and held that the respondent would be
entitled to continue in service until 4th November, 1998 on which date he ~-

would have completed IO years in service and as a result the respondent
would be liable to retire from service when he actually would complete 59
years, 4 months and 2 days. In that view of the matter, the writ petition was
allowed and the impugned order stood modified.
B
It is against the said judgment of the High Court, the appellants are _..k
before us in appeal.

Mr. U. U. Lalit, learned counsel appearing for the appellants contends
that in terms of Judges Case-I (1992) l SCC 119 and Judges Case-II [1993)
c 4 SCC 288. Rule 10(3)(c) stood subrogated therein and the High Court was
justified in taking a decision on completion of the age of 58 years of the
respondent to find out whether he would be allowed to continue till the age
of 58 years. We find merit in his contention.

In Judges Case-I, a direction was issued by this Court to all the States
D
and the Union Territories, including the State of Maharashtra, .to fix the age
of retirement at 60 years w.e.f. 31st December, 1992 in respect of members
of the Judicial Service. In Judges Case-II again this Court held that where
there is no Rule providing for the age of superannuation at the age of 60
~
years, a Committee of the High Court should undertake and complete the
E exercise in case of officers about to attain the age of 58 years well within
time by following the procedure for compulsory retirement as laid down in
respective Service Rules applicable to Judicial Officers; that those who will
not be found fit and eligible by this standard should not be given the. benefit
of the higher retirement age and should be compulsorily retired at the age of
58 years by following the said procedure for compulsory retirement; and that
F the exercise should be undertaken before the attainment of the age of 58 ...,.,
years even in case where earlier the age of superannuation was less than 58
years.

In terms of these directions, the Chief Justices of the respective High
G Courts were required to set up appropriate Committees of five Hon 'hie Judges
to look into the service records of the concerned Judicial Officer, so as to
consider as to whether he should be allowed to continue upto the age of 60
years. The said procedure was followed in the instant case.
'>--
The five-Judges Committee looked into the records of the respondent
H and zypined:
•
HIGH COURT OF BOMBAYv. BRIJ. MOHAN GUPTA 535

'The Committee has considered the annual Confidential Reports A
of Shri Gupta for the last 5 years i.e. since 1992. He lacks integrity.
He does not enjoy good reputation. His behaviour with the members
of Bar and public is unsatisfactory. He is rated as a poor Judge. The
S.J.D. record shows that in File No. SID/BY/34/93, the Disciplinary
Committee has, on 29th March issued a warning informing him that B
he should be more careful while passing order in future.

Considering the material placed before the Committee and the
overall performance of Shri Gupta, the Committee is of the opinion
that he is not suitable to be continued, his performance is not upto the
mark and therefore, he does not deserve grant of benefit of increase C
of retirement age of 60 years."

In view of the said report, the respondent was made to retire on attaining
the age of 58 years i.e. 30.7.1997.

Rule 10(3)(c) of the Maharashtra Civil Service (Pension) Rule, 1982 is
applicable only to the direct appointees from the Bar. By reason thereof, the D
benefit of pension has been extended to them so as to enable them to complete
the. minimum qualifying service of ten years subject to the outer limit of 60
years of age. The normal age of superannuation of such an officer would
either be completion often years of service or 55 years whichever is earlier.
In that view of the matter, the respondent would have reached the age of E
superannuation on attaining the age of 55 years. He, however, in view of the
benefit conferred in terms of the Judges' Case, as referred to hereinbefore,
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; F
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.

In our view, the exercise of setting up a Committee by the Chief Justice,
G
the recommendation made by the Committee and also finally the administrative
·-' order passed by the High Court, were strictly in terms of the Judges Case-
! and Judges Case-II. In fact, by virtue of Judges Case-I and Judges Case-11,
Rule 10(3)(c) stood suborgated. We are, therefore, of the view that the
judgment under challenge is not in conformity with the aforesaid decisions H
536 SUPREME COURT REPORTS [2003] I S.C.R. ,

A and is liable to be set aside.

However, in the peculiar facts and circumstances of the case and
particularly in view of the fact that the original respondent has expired on
17.3.2001, we direct that he may be held to have retired on completion of 10
years of service and in that view of the matter, all retiral benefits would be
B payable in accordance with law. We have taken this view as in the event, the
respondent was allowed to complete ten years of his service, he would have
retired at the age of 58 years six months only.

In that view of the matter, we are not inclined to interfere in the matter.
C The appeal is disposed of with the aforementioned observations and directions.

C.A.No.13811999

Learned counsel appearing for the appellant states that the appeal is
rendered infructuous. It is dismissed as such.
D R.P. Appeal disposed of.