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.

21.9 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.

21.12 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.

21.14 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.

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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:

"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:

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4. IAMR Report, Page 18.

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5. IAMR Report, Page 106.

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6. IAMR Report, Page 72.

"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."

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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.

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 :

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

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.

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.

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?

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10. Ibid2.

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.

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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.

21.41 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.

21.46 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 :

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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.

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15. AIR 1998 SC 1233 AT 1236 TO 1239.

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:

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:

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.

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: