20. PROMOTIONAL OPPORTUNITIES

20.1 The adequate promotional opportunity is one of the significant factors in service jurisprudence. Every officer looks forward to reasonable career progression not only because of higher salary but also with the object of occupying higher position of power and responsibility. It is undeniable that stagnation for long period would demoralise the officers. It is, therefore, necessary to evolve a proper promotion policy.

20.2 Keeping in view these factors, the Commission sought the views and comments on the following Questions :

Q.No.44. How many promotions a Judicial officer in your State at the lowest cadre normally gets during his tenure of service and at what intervals? Work out the realities with concrete examples.

Q.No.44.1. Does he invariably reach the highest cadre in the Judicial Service before retirement? If not, at what level does he stagnate and let the Commission have your suggestions to avoid stagnation?

Q.No.44.2. Should promotion be based on selection by merit alone or seniority-cum-merit? Please give reasons for preferring one or the other.

20.3 The replies received from the Respondents are presented below :

Almost all the High Courts have stated that a Judicial Officer recruited at the lowest level [i.e. Civil Judge (Junior Division)], generally gets promotion upto the post of Addl. District Judge / District Judge. Certain stray incidents of some Judicial Officers recruited as Civil Judges (Junior Division) retiring as Civil Judge (Senior Division) have also been reported. On careful scrutiny, it is found that such Officers have entered Judicial Service at an advanced age and could not complete even 25 years of service, before they could get promotion to the cadre of Addl. District Judge / District Judges. It is also noticed that in some cases, Civil Judges (Junior Division) not only reached the cadre of District Judges, but also marched to the High Court.

20.4 Some of the High Courts have reported that normally the first promotion from the cadre of Civil Judge (Jr. Dn.) to Civil Judge (Sr. Dn.) takes place within 6-9 years and second promotion after an interval of another 6-9 years. The High Courts of Kerala, Allahabad and Calcutta have stated that the interval between one promotion and another is about a decade. However, Sikkim stands as an exception. It is a small State with less number of Judicial Officers and having a population of around 5 lakhs with no scope for adequate promotional opportunity.

20.5 To prevent stagnation, various views have been expressed. Many of the High Courts / Service Associations and State Governments have suggested the following remedies :

i) Introduction of time bound pay scales or career advancement scheme.

ii) Provide a running pay scale.

iii) Stop direct recruitment from the Bar to the cadre of District Judges.

iv) Reduce at least the percentage of direct recruitment to the cadre of District Judges and make it uniform in all States / UTs.

v) All ex-cadre posts having judicial functions must be brought within the umbrella of judicial service with provision for deputation.

vi) Create selection grade and super-time scale in the District Judges cadre.

20.6 On the question as to whether promotion has to be on the basis of seniority-cum-merit or promotion by selection, the following suggestions have been received:

The High Courts of Andhra Pradesh, Delhi , Himachal Pradesh, Jammu & Kashmir, Kerala and Orissa have suggested that all promotions shall be made on the ground of ability and merit so as to keep all the Officers on their toes all the time and compel them to improve and give their best. However, they have added that seniority will have to be considered where merit and ability are equal.

The High Courts of Bihar, Gujarat, Karnataka, Madhya Pradesh, Punjab & Haryana , Sikkim , Tamil Nadu, Uttar Pradesh and West Bengal have favoured the principle of seniority-cum-merit for promotion. According to them, though promotion by merit is good in principle, it is more often based on subjective satisfaction and it is difficult to objectively consider the standard of meritorious performance.

Most of the Service Associations and State Governments have, however, favoured the principle of ‘Seniority-cum-Merit’ for promotion.

20.7 Taking all these factors into consideration, we have :

i) Rationalised the cadre structure and accordingly rationalised the pay structure also. Evolved a Master Pay Scale and carved out the required number of pay scales which have been elongated to prevent stagnation.

ii) Recommended Assured Career Progression Scheme for the cadres of Civil Judge (Junior Division) and Civil Judge (Senior Division) by providing two financial upgradations, within the stipulated time-frame.

 

iii) Recommended Selection Grade and Super-Time Pay Scales for District Judges, consistent with the functional needs and requirements.

iv) Recommended that the cadre of Civil Judges (Senior Division) should be purely a promotional cadre and no direct recruitment should be made to this cadre.

v) Recommended suitable amendment to Article 233 (2) of the Constitution to provide an opportunity for in-service Judges to compete for direct recruitment to the cadre of District Judges.

vi) Recommended that ‘not exceeding 25% of the posts in the cadre of District Judges should be reserved for direct recruitment’. This much of percentage for direct recruitment is considered necessary to promote efficiency, while at the same time, not impairing the interests of the promotees.

vii) Recommended an innovative concept of certain weightage for fixing the inter-se-seniority of the promotees and direct recruits in the cadre of District Judges to minimise if not to remove the constant irritation and imbalance between the promotees and direct recruits.

viii) Suggested that the promotional posts should be filled up at the earliest without being linked to the direct recruits.

 

* * * * *

21. SUPERANNUATION AGE OF JUDICIAL OFFICERS

SURVEY OF THE PAST :

21.1 In the past, the age of retirement of judges in the judicial service in every state was linked to that of the State Government Employees / Central Government Employees.

21.2 Till 31-3-1938, the normal age of retirement of Central Government Employees was 55 years. Employees could, however, be retained in service upto 60 years depending on their being physically fit and mentally alert.

21.3 The First Central Pay Commission set up by the Central Government in 1946 recommended 58 years for superannuation of Central Government employees. But this recommendation was not accepted by the Government on the ground, inter-alia, that the majority of persons retiring at the age of 55 were not capable of rendering efficient service; that their replacement at the age of 55 by younger men would serve the interest of efficiency better and that a retirement age should be fixed which would release men at the age when they would still be fit to render service to the country in other spheres of their choice.

21.4 In 1953, the question was reconsidered, but the earlier decision to retain the age of retirement at 55 was reaffirmed. The Government, however, decided that in view of shortages of trained personnel, the extension of service beyond 55 years might be given liberally on the ground of public interest particularly in the case of scientific and technical personnel.

21.5 In 1958, the question of retirement age was again considered in view of the continuing shortage of trained manpower. The Government did not extend the age of superannuation, but laid down the criteria for grant of extension and re-employment of technical and scientific personnel. It was decided that re-employment or extension might be granted upto two years at a time.

21.6 The Second Central Pay Commission examined the question of retirement age in some greater detail. It compared the data on life expectancy at birth and the retirement age, and also the data on general mortality and survival rate of pensioners, in comparison with the age of superannuation of Government servants in some foreign countries. The Commission also took note of the opinions expressed by eminent persons, economists, retired public servants, heads of departments, etc. After considering the various aspects, the Commission recommended an upward revision to 58 years. It mainly relied upon the fact that the life expectancy in India has improved, and there was greater need of scientific and technical personnel in Government service to meet the requirements of the Third Plan, then on the anvil.

21.7 Initially, the said recommendation was not accepted by the Government, since it was felt that raising the age of superannuation would reduce employment opportunity.

21.8 In 1962, the matter was again brought to the attention of the Government. The Government then took into consideration several factors like shortage of experienced and trained manpower; insignificant impact on employment opportunity (viz., of less than one per cent of the total volume of additional employment needed for the educated unemployed during the Third Plan period); the higher expectation of life and the continued physical fitness of Government employees after retirement. The Government decided to raise age of retirement from 55 to 58 years with effect from 1st December 1962. The age of retirement for Group D category of employees and workshop employees in the Central Government was maintained at 60 years.

 

21.9 The Third and Fourth Central Pay Commissions received many representations for upward revision of age of retirement to 60 years. But it did not favour the revision on the ground, inter-alia, that it would reduce the employment opportunities for fresh graduates and technical persons in Government service. They emphasised the need for injecting fresh blood and fresh knowledge for the efficient working in government.

21.10 All the State Governments save State of Kerala have followed similar age of retirement to their respective employees and also extending the same to Judicial officers in their states.

21.11 When the matter thus stood, the All India Judges' Association filed a writ petition1 before the Supreme Court seeking several reliefs including the upward revision of retirement age. It was contended before the Court therein that there is a marked distinction between the Civil Service and the Judicial Service, both in the qualification and nature of work. The age of superannuation of the Judicial Officers should be more than that of civil servants in as much as the basic qualification for recruitment to the judicial service requires every Officer to have in the minimum a bachelor's degree in law which is acquirable after becoming a graduate. But for normal civil service an ordinary graduate could apply and secure a job and that is not possible in judicial service which requires further period of three years to acquire the basic qualification. This inevitably would take minimum age for entry into Judicial Service higher than the minimum age for entry into Civil Service. It was urged that a distinction has to be maintained in the age of retirement for the Judicial Officers from that of the Civil Service and it is wrong to apply the same rule for both the categories.

21.12 Considering these and other factors, the Supreme Court observed that the age of retirement of Judicial Officers in subordinate courts should be raised from 58 to 60 years.

 

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1. AIR 1992 SC 165 = (1992) 1 SCC 119.

21.13 The aforesaid view has been maintained in the Review Judgement2 but with certain directions, which will be presently considered.

FIFTH CENTRAL PAY COMMISSION :

21.14 This Central Pay Commission was also required to examine the question as to the appropriate age of retirement of Central Government employees. The Commission entrusted the matter to the INSTITUTE OF APPLIED MANPOWER RESEARCH ("IAMR") for study and report.

21.15 IAMR if, we may say so, has examined the question in a scientific manner with collection of statistics of this country and countries abroad. It has even collected the up-to-date Data and in particular from the ILO Report III of the Joint Committee of Public Services (4th Session), Geneva , 1988. The relevant part of the report may usefully be extracted herein below3 :

"It is observed that the age of superannuation is 65 years in most Western Countries, viz. Australia, Belgium, Finland, France, Greece, Italy, Ireland, Luxembourg, Netherlands, Spain, Sweden, Turkey, U.K., Canada and U.S.A. In Denmark the age of retirement is 67 and in Norway , the retirement age of 70 years is followed in the case of certain categories of employees. In Asian region, the highest age of retirement is 65 years in Japan and Hong Kong; 60 years in China , Pakistan , Philippines ; 57 years in Bangladesh ; and 55 years in Malaysia , Singapore and Sri Lanka ."

 

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2. AIR 1993 SC 2493; (1993) 4 SCC 288.

3. IAMR Report, Page 17.

21.16 The Table containing the age of superannuation in public services in foreign countries prepared by IAMR is hereto annexed as Annexure I to this chapter.

21.17 It is interesting to note the new developments in the age of retirement in other countries. IAMR has collected the following information:

NEW DEVELOPMENTS - WORLD TRENDS4

"In a number of countries, specially in European region, a further increase in the retirement age is round the corner. This change is taking place due to demographic causes especially the phenomenon of ageing population; and to reverse / arrest the trend of early retirement. In about 20 countries, there is a possibility of raising the current normal age of retirement on the following patterns:

(i) Denmark , Switzerland , Portugal , U.K. , Australia and Finland are taking measures for greater flexibility in the age of retirement for longer stay of people at work. Israel and Germany are also taking similar measures.

(ii) U.S.A. , has recently increased the age of retirement from 65 to 67 years. Japan is raising the age of retirement to 65 for both men and women. Costa-Rica has already increased the age of retirement to 65 years.

(iii) In the Republics of Czech and Slovak, it is proposed to increase the age of retirement to 62 years for both men and women, as against the existing 60 years for men and 57 years for women.

______________________________________________________________

4. IAMR Report, Page 18.

(iv) A gradual increase of retirement age to 65 years is being proposed in Italy against 60 years at present.

(v) In Argentina a proposal for raising the retirement age from 60 to 65 is being discussed."

21.18 IAMR has made a sample survey of the health conditions of about 1183 retired persons by contacting them personally. It is highly educative to read that information which runs as follows:5

"A sample survey of persons retired during the last five years (1990-94) was carried out for assessing their activity status, health conditions, opinions, on the age of superannuation, availability of work, leisure time spent, etc. For this purpose, names and addresses of about 5000 retired persons (1000 for each year) was obtained from the Office of Chief Controller of Pensions. In all 1183 retired persons were contacted by mail with Reply-paid facility to furnish information in the questionnaire drawn for the purpose. By the end of July, 365 persons furnished the information. Of course, 166 belonged to the gazetted and the rest i.e. 199 to non-gazetted categories.

About 50 per cent of the respondents reported that they were either working or were available for work. It was interesting to note that persons in the age group of 62 to 65 (about 9 per cent) had indicated their desire for work. Those employed / self employed, were persons between the ages 60 to 62 years.

Bulk of the retired persons viz. 80 per cent reported 'Excellent' to 'Good' health conditions. Another 14 per cent

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5. IAMR Report, Page 106.

reported 'Fair' health and only 6 per cent reported 'Poor' to 'Indifferent' health. The incidence of poor or indifferent health was found to exist amongst people above 62 years of age. It is seen that health conditions amongst the retired persons were good upto the age of 62 years."

21.19 After taking all these factors into consideration, IAMR has recommended as follows6:

(a) The age of superannuation for Central Government employees is recommended at 62 years, uniformly for all categories including school teachers. This age will also be applicable to the employees of UnionTerritory Administrations and N.C.T. of Delhi .

(b) A higher age of superannuation of 65 years is recommended for scientific and technical research and teaching professionals and Medical research and teaching professionals, Judges, Medical specialists, Computer specialists and other high-tech. professionals may also have the age of retirement of 65 years.

Non-technical employees, however, in scientific, technical or research institutions may not qualify for the enhanced retirement age and may retire at the general age of retirement of 62 years.

(c) The age of superannuation of senior officers of Central Police Organisations (CPOs) performing administrative and

______________________________________________________________

6. IAMR Report, Page 72.

supervisory nature of duties may be increased to 62 years. No change in retirement age is recommended for the operational personnel in any of the Central Police Organisation and the status-quo may be maintained.

(d) The age of superannuation for officers performing administrative and supervisory duties in the Delhi Police may be 62 years at par with Central Government employees etc."

RECOMMENDATIONS OF THE FIFTH CENTRAL PAY COMMISSION :

21.20 After considering the report of IAMR and other relevant material, the 5th CPC recommended7 to :

"increase the age of retirement for all Central Government employees (Except those in the Armed Forces and Central Police Organisations) to 60 years.

21.21 The 5th CPC further observed that8 :

"The recommendation for extending the age of superannuation to 60 years should have only prospective effect from such date as Government may specify and shall be applicable only to those employees who are to retire at the normal age of superannuation on or after the date on which the Government orders come into effect."

21.22 The 5th CPC also made the following suggestion9 :

"The present age of superannuation of Central Government

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7. Volume III - 5th CPC Page 1752.

8. Volume III - 5th CPC Page 1753.

9. Volume III - 5th CPC Page 1755.

 

employees has acted in the past as a benchmark against which the ages of superannuation of other categories of employee, judicial officers, teachers, constitutional authorities etc. were fixed. It is expected that our recommendations will lead to suitable readjustments elsewhere in order to maintain the present relativities." (emphasis furnished)

21.23 Pursuant to the recommendations made by the 5th CPC, the Central Government by order dated 13th May 1998, raised the age of retirement of Central Government employees from 58 to 60 and directed that they shall now retire from service on the afternoon of the last day of the month in which he / she attains the age of 60 years. It was further stated that the Government servants whose date of birth is the 1st 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.

21.24 Likewise, the Government of West Bengal, Pondicherry, Meghalaya, Mizoram and National Capital Territory of Delhi, have raised the retirement age of their civil servants to 60 years.

21.25 The remaining States, however, have not raised the age of retirement of their employees and it remains at 58.

21.26 Kerala Government consistently stood the ground by retaining the retirement age at 55 years for their employees.

21.27 This being the position, the Commission received several representations from Judicial Officers for enhancing the age of superannuation. The Commission, therefore, wanted to ascertain the views and comments on the matter from all concerned. For this purpose, the following question was formulated and included in the general Questionnaire :

Q.No. 48.1 :

What should be the proper age of superannuation to Judicial Officers?

21.28 In reply to the question, the diverse views have been received, which are set out in laconic details below :

VIEWS FROM JUDICIAL OFFICERS' ASSOCIATION :

21.29 By and large, most of the Judicial Service Associations have asked for raising retirement age to 62. One of the reasons given by them is rested on the recent hike in the retirement age of Central Government employees to 60 and the need to have proper relativity in their age of retirement. The Judicial Officers' Associations of Bihar, Gujarat, Kerala, Maharashtra, Manipur and Orissa, have, however, accepted the prevailing retirement age at 58 years.

21.30 The West Bengal Judicial Officers' Association has gone a step further. It has stated that if experience and maturity are required in judicial work, the retirement age should be raised to 65 years.

21.31 All India Judges' Association has given certain innovative reasons. It has stated that the judicial hierarchy has been accepted as a single entity by the Supreme Court. When each member of the judicial hierarchy puts his heart and soul in the discharge of his functions arduously for long hours every day, there should not be yawning gap in the retirement age of judges at various levels. They, in other words, want that there should be uniform age of retirement for judicial officers, High Court judges and Supreme Court Judges.

THE HIGH COURTS :

21.32 The High Courts of Patna, Jammu & Kashmir, Bombay, Sikkim, Rajasthan, and Punjab & Haryana are for upward revision of the age of retirement to 62 years. They have mainly put forward two fold reasons : (i) The retirement age of Central Government employees has been raised to 60 years and the existing relativity in the age of retirement of Judicial Officers has to be maintained; and (ii) The increase in the average span of life.

21.33 The High Court of Calcutta has a different approach to the question. It is stated that the general age of superannuation of the Judicial Officers may be maintained at 60 years keeping in tune with other service, but power should be conferred upon the High Court to extend upto 62 years for deserving cases.

21.34 The High Courts of Karnataka, Andhra Pradesh, Delhi, Himachal Pradesh, Kerala, Madhya Pradesh, Gujarat, Calcutta, Orissa, Madras and Allahabad, are, however, for maintaining the status-quo at 60 years.

THE GOVERNMENTS :

21.35 As expected, the Governments of Andhra Pradesh, Karnataka, Kerala, Maharashtra, Nagaland, Tamilnadu, Uttar Pradesh, West Bengal and Administration of the Union Territory of Lakshadweep, are against any alteration in the present retirement age of Judicial officers.

21.36 The Question for consideration is what should be the proper retirement age for our Judicial officers in the present set up?

21.37 Before we examine this question, we may refer to the observations and directions made by the Supreme Court in the Review Judgement in ALL INDIA JUDGES' CASE10. While declaring that there shall be upward revision of retirement age of Judicial Officers from 58 to 60, the Apex Court has made certain observations / directions which we had an occasion to consider earlier. But for immediate reference, we may reproduce the same below :

______________________________________________________________

10. Ibid2.

 

"There is, however, one aspect we should emphasise here. To what extent the direction contained in the main judgement under review shall stand modified. The benefit of the increase of the retirement age to 60 years shall not be available automatically to all Judicial Officers irrespective of their past record of service and evidence of their continued utility to the judicial system. The benefit will be available to those who, in the opinion of the respective High Courts, have a potential for continued useful service. It is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate Committees of Judges of the respective High Courts constituted and headed by the Chief J ustices of the High Courts and the evaluation shall be made on the basis of the judicial officers' past record of service, character rolls, quality of judgements and other relevant matters.

"The High Court should undertake and complete the 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 the respective Service Rules applicable to the judicial officers. 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 by following the said procedure for compulsory retirement. The exercise should be undertaken before the attainment of the age of 58 years even in cases where earlier the age of superannuation was less than 58 years.

"It is necessary to make it clear that this assessment is for the purpose of finding out the suitability of the concerned officers for the entitlement of the benefit of the increased age of superannuation from 58 years to 60 years. It is in addition to the assessment to be undertaken for compulsory retirement and the compulsory retirement at the earlier stage/s under the respective Service Rules.

"The enhancement of the superannuation age to 60 years coupled with the provision for compulsory retirement at the age of 50 years does introduce a change in the service condition of the existing personnel. There may be judicial officers who are not desirous of availing of the benefit of the enhanced superannuation age with the condition of compulsory retirement and may like to opt for retirement at the age of 58 years. In such cases, the concerned officers should intimate in writing their desire to retire at the age of 58 years well in advance and in any case before they attain the age of 57 years. Those who do not do so will be deemed to have exercised their option to continue in service till they attain 60 years of age subject to the liability of being retired compulsorily at the age of 58 years according to the procedure for compulsory retirement laid down in the Service Rules."

21.38 Some of the High Courts have literally incorporated the above observations in their Service Rules making also a provision for compulsory retirement at the age of 58 years, if the Judicial Officers are found unsuitable for two more years of service.

21.39 Elsewhere in our Report11, we have stated that the directions of the Supreme Court have affected the morale of the Judicial Officers. The review

 

 

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11. See the Chapter "The Trial Judge is Really 'On Trial' ".

 

 

of cases for compulsory retirement under the relevant Service Rules should be independently taken up by the High Court, and it should not be linked with the consideration for giving the benefit of service from 58 to 60 years. Therein, we have emphasised and also in our "Preface" to this Report that the cases of Judicial Officers must be periodically reviewed for compulsory retirement once in every five years, that is, at about 50, 55 and 60 years under the respective Service Rules made for the purpose. Such a review must be made by a Committee of Judges of the High Court headed by the Chief Justice. Those who come clean from such review should only be allowed to continue in service till they attain the age of superannuation.

21.40 We have also recommended to delete the Rules made by the High Courts incorporating the directions of the Supreme Court in the Review Judgement in the ALL INDIA JUDGES' ASSOCIATION CASE for compulsory retirement at the age of 58 years. Instead, we have suggested to all High Courts to make a rule specifying only the superannuation age without any condition. We have indicated that once such a rule is made, the said directions of the Supreme Court need not be followed for review of cases of Judicial Officers as observed by the Supreme Court in RAJAT BARAN ROY AND OTHERS v. STATE OF WEST BENGAL AND OTHERS12.

21.41 We may now proceed to consider the contentions advanced for upward revision of the retirement age of our Judicial Officers.

21.42 As earlier stated, the All India Judges Association has pleaded for uniformity in the retirement age for the Judges of the Supreme Court, Judges of the High Court and Judicial Officers. They want that the age of retirement of Judicial Officers should be raised to 65 years.

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12. (1999) 4 SCC 235, at 240.

 

21.43 We consider that the demand made by the All India Judges' Association is not sound and cannot be accepted. Indeed, it overlooks the intention of the makers of the Constitution.

21.44 Article 124 of the Constitution provides that the Judge of the Supreme Court shall hold office until he attains the age of 65 years.

21.45 Article 217 of the Constitution provides that every Judge of a High Court shall hold the office until he attains the age of 62 years (amended under the 16th Amendment to the Constitution. Prior to that, it was 60 years).

21.46 The Makers of the Constitution have deliberately kept different age of retirement for the High Court Judges and the Supreme Court Judges, in spite of the demand in the Constituent Assembly to fix uniform retirement age for the Judges of High Court and the Judges of Supreme Court. While rejecting that demand, Dr. Ambedkar gave the following reasons :

"It is essential that a difference of 3 to 5 years should be maintained between the retirement age of High Court Judges and that of Supreme Court Judges."

Dr. Ambedkar went on to state13 :

"The honour and prestige associated with a seat on the Supreme Court Bench have their limits as an attraction and it is the prospect of continuing in service for a period of five more years that chiefly attracts him to the new office. As this attraction would disappear if the age of superannuation for High Court judges

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13. The Framing of India's Constitution by B. Shiva Rao, Select Documents, Vol. IV p.198-199.

also is raised to 65, judges for the Supreme Court will have to be selected from among junior and comparatively inexperienced judges of the High Court, and a Court thus manned would hardly command the respect and confidence which the Supreme Court in the land ought to inspire. On a careful balancing of these considerations, we have come to the unanimous conclusion that - (i) it is essential that a difference of 3 to 5 years should be maintained between the retiring age of High Court Judges and that of Supreme Court Judges; (ii) age limit for retirement should be raised to 65 for High Court Judges and to 68 years for Supreme Court Judges;"

21.47 Subsequently, it appears that there were more criticisms for fixing the retirement age at 60 for the High Court Judges, as against the retirement age of 65 years for Supreme Court Judges. This has resulted in the Sixteenth Amendment to the Constitution by fixing the retirement age of High Court Judges at 62 years. Mr. M.V. Pylee14 narrates this development in the following manner :

"Both in the Constituent Assembly and outside, during the time of the framing of the Constitution and after, the provisions dealing with the conditions of service of judges of the High Court were subjected to three major criticisms. The most important of these related to the fixation of sixty years as the retiring age as was then provided. It was pointed out that when the age of retirement of the judges of the Supreme Court was fixed at sixty-five years, there was little justification for fixing that of the High Court

 

 

____________________________________________________________

14. Constitutional Government in India by M.V. Pylee, Second Revised Edition 1965, P.553.

judges at sixty. There is hardly any reason to suppose that the judges of the Supreme Court will do better after sixty than the judges of the High Court. There is no fundamental difference between the types of work of the Supreme Court and the High Court, nor in the conditions under which the judges work. It may be that a 'brilliant or sound' judge of the High Court who is physically fit has the opportunity to be appointed to the Supreme Court and thereby continue in service until he completes sixty-five years of age. But vacancies on the Supreme Bench are not of frequent occurrence. In comparison with the number of judges who retire every year from the High Courts, possible vacancies in the Supreme Court during the same period are negligible. Fixation of sixty as the retiring age may also prevent the top men in the Bar who have crossed the age of fifty years, from accepting appointments as judges of High Courts. These criticisms have substantially gone home as a result of which the sixteenth Amendment of the Constitution provided the retiring age to be raised to sixty-two years."

21.48 Having regard to the differential age of retirement for the Supreme Court Judges and the High Court Judges, which had the Constitutional sanction, we cannot accede to the contention that the age of retirement of the Judges of all Courts should be uniform.

21.49 However, there is a compelling reason for raising the retirement age of Judicial Officers to 62 years.

21.50 It is now well-settled that Judicial Service will include also the hierarchy of specialised Civil Courts such as Labour Courts and Industrial Courts.

 

 

21.51 In STATE OF MAHARASHTRA v. LABOUR LAW PRACTITIONERS' ASSOCIATION AND OTHERS15, the Supreme Court while explaining the scope of the expression 'District Judge' as defined under Article 236(a) and the expression 'Judicial Service' as defined under Article 236(b) of the Constitution, has observed:

"Para 9. Article 236(a) defines the expression "district judge" as including judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge. This is an extensive definition and does not cover every category of a district judge.

xxx xxx xxx xxx

Para 10. The District Judge, therefore covers a judge of any Principal Civil Court of Original Jurisdiction. With an increase in the numbers of specialised courts and tribunals which are being set up to deal with specific kinds of civil litigation which would otherwise have been dealt with by the ordinary civil courts, we now have a number of specialised courts exercising different categories of civil original jurisdiction. It can be specialised civil original jurisdiction pertaining to Labour and Industrial disputes specified in the relevant Acts as in the case of Labour and Industrial Courts, or it could be pertaining to recovery of bank debts and so on. The structure of civil courts exercising original jurisdiction is no longer monolithic. The judge of the

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15. AIR 1998 SC 1233 AT 1236 TO 1239.

 

Principal Civil Court heading the concerned set of courts under him and exercising that jurisdiction can also fall in the category of a "District Judge": by whatever name called . . . . . . . . . . .

xxx xxx xxx

xxx xxx xxx

Para 17. xxx xxx xxx

When the service is exclusively judicial, there is no reason to exclude such judicial service from that term under Article 236.

xxx xxx xxx

Para 18. xxx xxx xxx

xxx xxx xxx

Going by these tests laid down as to what constitutes judicial service under Article 236 of the Constitution, the Labour Court judges and the judges of the Industrial Court can be held to belong to judicial service. The hierarchy contemplated in the case of Labour Court judges is the hierarchy of Labour Court Judges and Industrial Court Judges with the Industrial Court judges holding the superior position of District Judges. The Labour Courts have also been held as subject to the High Court's power of superintendence under Article 227."

21.52 It may be stated that on these principles, even Member of the District Forum constituted under the Consumer Protection Act 1986, the Member of the Debt Recovery Tribunal constituted under the Debts Due to Banks and Financial Institutions Act, 1993 and the Judge of the Family Court constituted under the Family Courts Act, 1984, would also fall into the Judicial Service as defined under Article 236(b) of the Constitution, with the District Judge as the head of that service. But these posts have different age of retirement as seen herein below:

CONSUMER PROTECTION ACT, 1986:

Section 10(2) provides:

Every member of the District Forum shall hold the office for a term of five years or up to the age of 65 years whichever is earlier and shall not be eligible for reappointment."

THE ADMINISTRATIVE TRIBUNALS ACT, 1985:

Section 8(a) and (b) provides:

" In case of Chairman or Vice-Chairman, the age of 65 years and in the case of any other member, the age of 62 years."

RECOVERY OF DEBTS DUE TO BANKS AND FINANCIAL INSTITUTIONS ACT, 1993 :

Section 6 provides :

" The presiding officer of a Tribunal shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of 62 years whichever is earlier."

Section 11 provides :

" The presiding officer of an Appellate Tribunal shall hold the office for a term of five years from the date on which he enters upon his office or until he attains the age of 65 years whichever is earlier."

 

 

THE FAMILY COURT ACT, 1984 :

Section 4(5) provides :

" No person shall be appointed as or hold the office of, a judge of a Family Court, after he has attained the age of sixty two years."

THE INDUSTRIAL DISPUTES ACT, 1947:

Section 7-C provides :

"Disqualifications for the presiding Officers of Labour Courts, Tribunals and National Tribunals, -

No person shall be appointed to, or continue in, the office of the Presiding Officer of a Labour Court, Tribunal or National Tribunal, if -

(a) he is not an independent person; or

(b) he has attained the age of sixty-five years."

 

 

 

 

 

 

 

 

21.53 For convenient reference, we have given below the Table containing the Name of the Statute, Name of Post with the age of retirement:

Sl.No.

Name of the Statute

Name of Post

Age of retirement

1.

The Consumer Protection Act, 1986

Member, Dist. Forum

Upto 65 years

2.

The Administrative Tribunal Act, 1985

Member

Upto 62 years

3.

The Recovery of Debts Due to Banks & Financial Institutions Act, 1993

Presiding Officer

Upto 62 years

4.

The Family Courts Act, 1984

Judge, Family Court

Upto 62 years

5.

The Industrial Disputes Act, 1947

  1. Labour Court

2. Industrial Tribunal

Upto 65 years

 

21.54 All these statutory posts fall into the expression "Judicial Service" as defined under Article236(b) of the Constitution, to which our Judicial Officers also belong.

21.55 It is well-settled that different posts which are falling into the same service cannot have different age of retirement.

21.56 We cannot, however, as earlier stated, fix the age of retirement of our Judicial Officers uniformly at 65. The High Court Judges retire at 62 years and the Supreme Court Judges retire at 65 years. There is thus no scope to place the Judicial Officers between 62 and 65 years. Besides, any attempt of the Judicial Officers to overstep the limit of 62 years may be considered as trespass into the realm preserved to maintain the relativity of the retirement age of the Judges of the High Court and the Supreme Court. Such an attempt has to be ruled out in the first place.

21.57 What remains to be considered is only a narrow strip between 60 and 62 years. The Judicial Officers are already having 60 years as retirement age. The next step could only be to 62 years. Fortunately, there is no Constitutional inhibition for fixing the age of retirement of Judicial Officers at 62 years on par with that of High Court Judges.

21.58 We do not, however, mean that the High Court Judges should rest at 62 years. We would welcome if the age of retirement of High Court Judges is revised to 65 years and correspondingly, the age of retirement of Supreme Court Judges is raised to 68 or 70 years.

OUR RECOMMENDATION :

21.59 After considering various aspects of the matter, we recommend an increase in the age of retirement for all Judicial Officers from 60 to 62 years for the following reasons:

(i) From the statistical data collected by the IAMR to which we had made reference earlier, the longevity of our people has considerably increased.

 

(ii) From the Report of IAMR, it will be seen that in a number of countries, especially in European region, increase in the retirement age is round the corner. The change is taking place due to demographic causes, especially the phenomenon of ageing population and to reverse / arrest the trend of early retirement.

(iii) From Annexure-I, which is a copy of the Table prepared by IAMR, it will be seen that the age of superannuation in public services in some of the foreign countries is upto 65 years.

(iv) Recently, the Central Government while accepting the recommendation of the V Central Pay Commission, has raised the age of superannuation of the Central Government employees upto 60 years. This has been followed by all the Administrations of Union Territories.

(v) The V Central Pay Commission has also observed that the superannuation of Central Government employees has acted in the past as a Benchmark against which the age of superannuation of other categories of employees, Judicial Officers, Teachers, Constitutional Authorities etc., were fixed. They have suggested that their recommendation will lead to suitable readjustments in these Services in order to maintain the present relativities.

(vi) There is a tendency on the part of Judicial Officers after retiring at 60 years to seek re-employment in the Corporation and Statutory Boards as Law Officers. There, they will generally continue for a fixed term of five years.

 

(vii) Most of the Judicial Officers do not get full pension for want of qualifying service of 33 years, since they join the judiciary at later age in view of the additional qualification and experience prescribed for judicial recruitment.

(viii) The Judicial Officers, as the age advances, become more mature and their services could be better utilised by continuing them in service, instead of driving them to other avocations.

(ix) Unlike in the public services, there is no question of impact on employment situation if the age of retirement of Judicial Officers is raised to 62 years, since they are recruited from the members of the Bar. There are hardly 12,000 Judicial Officers in the whole country who would be given the benefit of upward revision by two years of service.

 

xxx xxx xxx

 

 

 

 

 

 

 

 

 

 

ANNEXURE

AGE OF SUPERANNUATION IN PUBLIC SERVICES IN FOREIGN COUNTRIES

Sl.No.

Name of the Country

Age of retirement

1

2

3

1.

AUSTRIA

65 yrs and 10 yrs of service. Full pension 35 yrs of service (early pension at 60 yrs and 10 yrs of service)

2.

BAHRAIN

Men 60 yrs

15 yrs of service

Women 55 yrs

Full pension 40 yrs of service

3.

BANGLADESH

57 years minimum pension of 10 yrs of service

60% pension after 25 yrs

70% (full pension at 57 yrs)

4.

BELGIUM

65 yrs and 20 yrs of service

early retirement 60 yrs and 5 yrs of service

5

BENIN

55 years

15 yrs of service

50 yrs for Police

6

MYNAMAR (BURMA)

60 yrs and 10 yrs of service

Full pension 42 yrs of service

7

BURUNDI

Men 60 yrs

30 yrs of service

Women 55 yrs

8

CANADA

60 yrs 5 yrs of service

early retirement 55yrs and

30 years of service

Full pension 35 yrs of service

9

COLOMBIA

Men 55 yrs

20 yrs of service

Women 50 yrs

10

IVORY COASTE

55 yrs or 60 yrs

(Executive or 65

yrs High Ranking

Magistrate

15 yrs of service

Full pension 40 yrs of service

11

CYPRUS

60 yrs of age, for

some categories

10 yrs of service

55 yrs

 

12

ELSALVADOR

60 yrs and 15 yrs of service

Full pension 40 yrs of service

13

FINLAND

65 yrs

(for some categories between

55 and 63 yrs)

Early retirement 63 yrs

Full pension 63 yrs of age and

30 yrs of service

14

FRANCE

65 years

Early retirement 60 yrs

(55 yrs for Public

servant in foreign

country)

15 yrs of

service

15

GAVON

55 yrs and 15 yrs of service

No age, if 30 yrs of service

16

F.R.G. (Federal

65 yrs for some

categories

Qualifying service

of 5 yrs

60 yrs

Early retirement 62 years

No age requirement if 35 yrs of service

17

GREECE

65 yrs and 15 yrs of service

Full pension 56 yrs and 35 yrs of service

18

INDONESIA

55 years

Early retirement 50 yrs & 20 yrs of service

Full pension 30 yrs of service

19

IRELAND

65 yrs of age

Full pension 40 yrs of service

20

ITALY

65 yrs of age and 20 yrs of service

(Lower age for Army)

Early retirement 40 yrs of service

21

JAPAN

65 yrs of age and 25 yrs of service

22

LUXEMBOURG

65 yrs

10 yrs of service

55 yrs of Police

Early retirement 60 yrs and 30 yrs of service

23

MADAGASCAR

55 yrs/60yrs and 15 yrs of service

Early retirement 45 yrs &

15 yrs of service

No age requirement if 25 yrs of service

24

MALAYSIA

55 years

Early retirement 50 for Men

10 yrs of service

45 for Women

25

MEXICO

55 yrs and 15 yrs of service

Full pension 30 yrs of service

26

MOROCCO

60 years

65 years for teacher

66 years for Magistrate

Early retirement 21 yrs of service

27

NEPAL

20 yrs of service

28

NETHERLANDS

65 years

29

NIGERIA

60 yrs of age and

15 yrs of service

30

NORWAY

Certain categories 70 yrs -

60 to 68 yrs

(3 years of service)

Early retirement 67 yrs with 30 yrs of service

Full pension 30 yrs of service

31

PAKISTAN

60 yrs and 10 yrs of service

Early retirement 25 yrs

Full pension 30 yrs of service

32

PHILIPPINES

60 yrs and 15 yrs of service

33

PORTUGAL

70 yrs and 5 yrs of service

Early retirement 60 yrs &

36 yrs of service or on completion of 30 yrs

34

SENEGAL

55 yrs and 15 yrs of service

35

SPAIN

65 yrs and 9 yrs of service

Early retirement 60 yrs & 30 yrs of service

36

SRI LANKA

55 yrs and 10 yrs of service

37

SURINAME

60 yrs of age

Early retirement 55 yrs and 35 yrs of service

38

SWEDEN

65 years of age

39

SWITZERLAND

62 yrs and 40 yrs of service

Early retirement. Women 60 yrs and 35 yrs of service

40

TOGO

55 yrs and 15 yrs of service

Full pension 40 yrs of service

41

TRINIDAD & TOBAGO

55 yrs and 10 yrs of service

42

TUNISIA

60 yrs

15 yrs of service

65 yrs for Managers

55 yrs for Police / Prison or workers performing difficult or non-healthy work -

55 yrs and 35 yrs of service

43

TURKEY

65 yrs and 15 yrs of service

Full pension 30 yrs of service

44

UNITED KINGDOM

60 to 65 yrs and 5 yrs of service

45

UNITED STATES OF AMERICA

62 yrs of age and 5 yrs of service or 60 yrs and 20 yrs of service or 55 yrs of age

and 30 yrs of service

46

VENEZUELA

60 yrs and 25 yrs of service

No age after 35 yrs of service

47

ZIMBABWE

56 to 65 yrs of age

48

MOURITIUES

60 years

49

ISREAL

65 years

50

USSR (Former)

60 years

51

POLAND

65 years

Sources: 1. ILO, Joint Committee on the Public Service

Report III, Fourth Session, Geneva , 1988.

2. Averting the Old Age Crisis, World Bank, 1994.

           

 

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