Pratap Singh vs State Of U.P.& Anr

Pratap Singh .... Appellant

Versus

State of U.P. & Anr. ....Respondents

JUDGMENT

R.M. Lodha, J.

The appellant - a judicial officer - having not been

promoted in the substantive vacancy to Uttar Pradesh Higher

Judicial Service (for short, `UPHJS') and, as a result of which, was

reverted as Civil Judge (Senior Division) is in appeal, by special

leave.

2. The appellant, after due selection, joined judicial service

in Uttar Pradesh as Munsiff on May 16, 1977 and was confirmed as

such on August 30, 1982. He became Additional Civil Judge on

January 4, 1986 and got selection grade of Rs. 3700 - 5000 with

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effect from April 1, 1990. He then became Civil Judge (Senior

Division).

3. The Allahabad High Court, on the administrative side,

in its full court meeting held on November 18, 1995, approved

promotion of the appellant in officiating capacity under Rule 22(3) of

Uttar Pradesh Higher Judicial Service Rules, 1975 (for short, `1975

Rules'). Pursuant to the above decision taken by the full court, a

notification was issued on June 7, 1996 promoting and posting the

appellant as Additional District and Sessions Judge, Lalitpur.

4. While the appellant was posted as Additional District and

Sessions Judge, Lalitpur, Shri Mukteshwar Prasad happened to be

District Judge, Lalitpur. The appellant was made Officer in-charge,

Nazarat by the District Judge with effect from September 10, 1996.

The appellant continued as such until March, 1997 or so. It so

happened that in the intervening night of January 30/31, 1997, some

thieves entered the residence of the appellant and tried to break

open the doors. The appellant suspected the involvement of class-IV

employees of Lalitpur Judgeship. On that day, the District Judge was

on leave and the appellant handed over an application to the Senior

Administrative Officer wherein he alleged the support of the District

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Judge to class IV employees suspected to have entered the house

of the appellant for theft. The application made by the appellant to

the Senior Administrative Officer was kept in an open envelope. The

District Judge, Lalitpur sought explanation from the appellant with

regard to the allegations made by him in his application and also

gave information of the incident to the Registrar of the High Court as

well as the inspecting Judge of Lalitpur Judgeship on February 19,

1997.

5. In the appellant's annual confidential report (ACR) of the

year 1996-97 (June 12, 1996 to March 31, 1997), the District Judge

(Shri Mukteshwar Prasad) made the following remarks:

"

(a) Integrity of the officer whether Beyond doubt. No

beyond doubt, doubtful or complaint received.

positively lacking.

(b) If he is fair and impartial in No specific

dealing with the public and bar. complaint was

made to me.

(c) If he is cool-mind and does not Yes

lose temper in court.

(d) His private character, if such as No complaint

to lower him in the estimation of received against

the public and adversely affects his private

the discharge of his official character.

duties.

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(e) Control over the file in the

matter of-

(i) Proper fixation of cause list. Not proper. On an

Average, he fixed

22-23 cases.

(ii) Avoidance of unnecessary Satisfactory

adjournments

(iii) Disposal of old cases. Not satisfactory.

Disposed of one

S.T. of 1991, 2 of

1992 and 6 of 1993

out of 7 of 1991, 32

of 1992 and 36 of

1993.

(iv) Progress and disposal of There were 3

execution cases. execution cases of

1996 but no case

was disposed of.

One case is stayed

by the Hon'ble High

Court.

(v) Interim orders, injunctions Yes.

Being granted, refused to

retained for sufficient reasons.

(vi) Are cases remanded on No appeal was

substantial grounds? remanded.

(f) Whether judgments on facts Judgments of

and law are on the whole average quality.

sound, well reasoned and

expressed in good language.

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(g) Whether disposal of work is Out-turn being 132%

adequate (give percentage & is above the

reasons for short disposal). standard. As per

statement received

as against 133

working days, he

gave work for

175.88.

(h) Control over the office and Proper.

administrative capacity and tact.

(i) Relation with members of the Normal

bar [mention incidents, if any]

(j) Behaviour in relation to brother Normal

Officers [mention incidents, if

any]

(k) Whether the officer has made YES

Regular inspections of his court

and Offices in his charge during

the year and whether such

inspections were full and

effective.

(l) His punctuality in sitting in the Punctual.

court

(m) Whether amenable to advice of He is not amenable

District Judge and other at all to the advice of

superior Officers. the District Judge.

Reasons given

below in column no.

3.

2. Overall assessment of the merit Poor. Irresponsible

of the officer-out-standing, very and indisciplined

good, good, fair, poor. officer who has no

regard for his super-

iors or truth. Details

mentioned in column

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no. 3 below.

3. Oth er Remarks, if any.

After taking over charge by me in this district,

the officer was appointed Officer-in-Charge, Nazarat

w.e.f. 10.9.1996. He being the next senior most officer

in the Judgeship and only Addl. District Judge at that

time, was expected to extend his full cooperation and

assistance in the affairs of the Judgeship. Since very

beginning, I found that his attitude was not

cooperative and in fact he took no interest at all for

improvement in working of Nazarat. He never came to

me in the chamber or at the residence to discuss any

problem relating to Nazarat. In the month of

November, 1996, he made a request in writing for

relieving him from the post of Officer-in-charge,

Nazarat. I summoned him and persuaded to continue

as Officer-in-charge, Nazarat. With reluctance, he

agreed to continue. Again he sent an application on

22.1.97 for removing him from the post of Officer-in-

charge, Nazarat on the ground that Sri Shanker Lal, a

Class IV employee was not transferred by me on his

oral and written request. It is noteworthy that Sri

Shanker Lal was transferred and in his place Sri

Manik Chand was posted in his court vide order dated

30.1.97. Sri Singh was highly interested in a Class IV

employee [Sri Swand Singh] and wanted his posting

in his court but he was not transferred there for some

administrative reasons. He joined the service in

August, 1996.

He always complained of non-cooperation of

Central Nazir and other officials working in the

Nazarat and passed an order also on 23.12.96 to the

effect that the Central Nazir never took round of the

courts and never checked Chowkidars. In pursuance

of this order, Central Nazir Sri Shamsher Bahadur

Srivastava took a surprise round of the Civil Court

building on 12.1.97 at about 3.35 a.m. and checked

both Chowkidars at 3.50 a.m. Both Chowkidars,

namely, Sarvasri Swank Singh and Gulab Chand

Saroj were found sleeping. He submitted his report to

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the Officer-in-charge, Nazarat to call explanation of

the Chowkidars. Sri Singh took no action against the

Chowkidars and warned them to be vigilant in future.

Sri Singh always found shirking from work and

never rendered any assistance to me in dealing with

various problems of the Judgeship. Before posting of

Sri Jai Singh, a newly promoted Addl. District Judge

in the district in the month of March, 1997, he was

senior most Addl. District Judge in the Judgeship. He,

however, did not play his role properly for the simple

reason that a Class IV employee of his choice was

not posted by me in his court.

2. Sri Singh levelled totally false and baseless

allegation against me in writing on 31.1.1997 when I

was out of station and had gone to Gwalior. In my

absence he handed over an application to Senior

Administrative Officer and did not even keep the

application in an envelope. Consequently, the

contents of the letter were well-known to all the

officials and officers working under me before my

arrival at the headquarters. He levelled accusation

against me that some thieves tried to break open the

doors of his residence in the night intervening

30/31.1.1997. He suspected the involvement of some

Class IV employees of the judgeship. According to

him the thieves were Class IV employees of the

judgeship and I was supporting them. After having

gone through the contents of the letter, I was stunned.

I sent a letter to Sri Singh and sought his reply on a

few questions. In his reply dated 6.2.97, he tried to

twist his letter dated 31.1.97. Thus the officer tried to

tarnish my image in the eyes of other officers and

officials of the Judgeship and committed an act of

gross indiscipline.

I have already communicated these facts to the

Registrar of the Hon'ble High Court of Judicature at

Allahabad as well as Hon'ble the Inspecting Judge of

Lalitpur through my D.O. letters No. 4 and

5/P.A./1997 dated 19.2.1997.

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For all the above reasons, I have rated the

officer to be most irresponsible and indisciplined."

6. The above adverse remarks recorded by the District

Judge, Lalitpur were communicated to the appellant on May 30,

1997. On receipt of the communication, the appellant made

representation to the Registrar on June 28, 1997 and prayed that the

adverse remarks recorded by the District Judge be expunged.

7. On October 21, 1997, the appellant was communicated

by the Joint Registrar that after consideration of his representation,

the remarks recorded by the District Judge in Column No. 1(e)(iii),

1(e)(iv) for the year 1996-97 have been expunged and Column No. 2

has been substituted by the court as - `overall assessment - just

average'.

8. It is the appellant's case that on July 11, 1998, he came

to know that the full court in its meeting held on that day did not

approve the appellant's name for his appointment in the

substantive vacancy in UPHJS. The appellant submitted a

representation to the High Court on administrative side on August

19, 1998 to reconsider the decision taken on July 11, 1998. The

representation of the appellant was not favourably considered and

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on December 5, 1998 a notification was issued on the basis of the

decision taken by the full court on July 11, 1998 reverting the

appellant to the judicial service, i.e. Civil Judge (Senior Division).

9. The appellant challenged the notification dated

December 5, 1998 in a writ petition before the Allahabad High Court

at Lucknow Bench and prayed for quashing the same. He prayed

that report of the selection committee dated May 18, 1998 and

record of the decision of the full court taken on July 11, 1998 insofar

as appellant was concerned be called for and a writ of mandamus

be issued commanding the respondents to treat the appellant having

been promoted to the UPHJS and ignore the remarks made by the

District Judge in the ACR for the year 1996-97.

10. The above writ petition was contested by the

respondents.

11. The Division Bench of the High Court, after hearing the

parties, by its order dated December 21, 2009 dismissed the writ

petition.

12. We heard Mr. Dinesh Dwivedi, learned senior counsel for

the appellant and Mr. Ravi Prakash Mehrotra, learned counsel for

the respondent no. 2.

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13. From the counter affidavit filed before this Court on

behalf of respondent No. 2 - High Court of Judicature at Allahabad -

it transpires that the matter for promotion of the appellant in UPHJS

under Rule 22 (3) of the 1975 Rules was considered by the HJS

Selection Committee of three-Judges in its meeting held on

November 10, 1995 and the name of the appellant was

recommended for promotion to UPHJS in ad-hoc capacity. The

report of the selection committee was considered by the full court in

its meeting held on November 18, 1995 and the appellant's name

was approved for promotion to UPHJS in ad-hoc capacity. The

appellant was accordingly promoted to UPHJS and given posting at

Lalitpur as Additional District and Sessions Judge. Thereafter

appellant's matter for promotion in the substantive vacancy in

UPHJS was considered by the selection committee comprising of

three-Judges on May 18, 1998. The committee, however, did not

recommend the appellant's name for promotion under Rule 22(1) of

the 1975 Rules in view of the remarks given by the District Judge in

the ACR for the year 1996-97. The committee referred to the

remarks of the District Judge made in column 3 that he was most

irresponsible and indisciplined officer. The report of the above

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committee was considered by the full court in its meeting held on

July 11, 1998 and his name was not approved for appointment in

UPHJS under Rule 22 (1) of the 1975 Rules. The question before

us is : whether non-approval of the appellant for promotion in the

substantive vacancy in UPHJS under Rule 22(1) of the 1975 Rules

suffers from any illegality.

14. It is not in dispute that the remarks recorded by the

District Judge, Lalitpur in the ACR for 1996-97 (June 12, 1996 to

March 31, 1997) formed the basis of non-approval of the appellant's

name for promotion in the substantive vacancy in the UPHJS. That

the District Judge, Lalitpur rated the appellant in the ACR recorded

for the above period as an `irresponsible and indisciplined officer' is

borne out from the record. Against the remarks made by the District

Judge, the appellant made a comprehensive representation to the

Registrar on June 28, 1997. It is not necessary to refer to the

representation made by the appellant in detail. Suffice it to say that

the appellant did highlight that his integrity has been found to be

beyond doubt and that in about 20 years of his judicial service, he

has been posted with 24 District Judges and except the adverse

remarks made by Shri Mukteshwar Prasad, District Judge, Lalitpur

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for the above period at no point of time any District Judge recorded

any adverse remark about his conduct, integrity or performance.

The appellant emphatically denied the observations of the District

Judge, Lalitpur, recorded in the ACR and explained the entire

episode.

15. The representation made by the appellant was

considered by the Inspecting Judge of Lalitpur District. Vide

communication dated October 21, 1997, the appellant was informed

that the adverse remarks recorded by the District Judge in column

No. 1 (e)(iii) - `disposal of old cases : not satisfactory" and the

adverse remarks in column no. 1 (e)(iv) -"progress and disposal of

execution cases: there were three execution cases of 1996 but no

case was disposed of" had been expunged. In the above

communication, the appellant was also informed that column no. 2

--"overall assessment of the merit of the officer - outstanding, very

good, good, fair, poor : Poor. Irresponsible and indisciplined officer

who has no regard for his superiors or truth. Details mentioned in

column no. 3 below" has been substituted by "overall assessment -

just average". A careful reading of the communication dated October

21, 1997 leaves no manner of doubt that the adverse remarks given

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by the District Judge, Lalitpur in column no. 2 that appellant was

irresponsible and indisciplined officer for the facts stated in column

no. 3 no longer remained as it is and were substituted by "just

average". The consideration of the remarks recorded by the District

Judge, Lalitpur by the selection committee as well as by the full court

in its meeting held on July 11, 1998 was, thus, not proper.

16. However, in the counter affidavit filed on behalf of

respondent No. 2 before this Court, in paragraph `C', the complete

text of the order passed by the Inspecting Judge on August 6, 1997

on the representation of the appellant has been re-produced which

reads as follows :

"I have gone through the adverse remarks given by the

District Judge, Sri Mukteshwar Prasad in para - 1 (e)(i),

1(e)(iii), 1(e)(iv), 1(f) and 1(m) as well as in column no. 2

relating to "over all assessment" and column no. 3 relating

to "other remarks, if any", I have also gone through the

representation preferred by the officer concerned. Looking

to the representation made by the officer concerned, I feel

that the conclusions arrived at by the District Judge in para

1(e)(i) and 1(f) do not deserve to be expunged while the

conclusions arrived at under column 1(e)(iii) and 1(e)(iv)

deserve to be expunged.

The details given by the District Judge in remarks

column no. 3 do go to indicate that Sri Pratap Singh--II is

not amenable to the advice of the former, i.e. District

Judge. As far as the over-all assessment taken to be `poor'

by the District Judge is concerned, I do not agree with the

conclusions arrived at by him. Instead, looking to the

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reasons given by the Judicial Officer, Sri Pratap Singh-II in

this regard, I find logic in them; since his integrity has been

described by the District Judge to be beyond doubt and his

work out-turn has been described to be above standard

then, obviously, the over all assessment could not be

`poor'. Thus, it deserves to be expunged, and, instead,

keeping in mind the complete A.C.R. and the remarks

given by the District Judge, overall assessment can be

rated as "just average".

Further, since remarks given by the District Judge, Sri

Mukteshwar Prasad are based on factual aspects which

had also been communicated to the Registrar of the High

Court as well as to me, the Inspecting Judge, at the

opportune time, hence, they do not deserve to be

expunged, and the representation made by the Judicial

Officer, Sri Pratap Singh-II in this regard deserves to be

rejected."

17. On October 11, 2011, in course of hearing, Mr. Ravi

Prakash Mehrotra, learned counsel for respondent No. 2 made a

request for adjournment to enable him to seek instructions as to

whether or not along with the communication dated October 21,

1997, copy of the decision of the Inspecting Judge, as reproduced

above, was sent to the appellant. We acceded to the request of the

counsel and kept the matter for October 18, 2011. On October 18,

2011, Mr. Ravi Prakash Mehrotra, fairly stated that the copy of the

decision of the Inspecting Judge was not sent to the appellant and

he was informed of what was contained in the communication dated

October 21, 1997 only. In our view, in the above circumstances the

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text of the decision of the Inspecting Judge dated August 6, 1997

cannot be used against the appellant. It needs no emphasis that a

judicial officer has to be disciplined and must behave as a

responsible officer. Indiscipline in the judiciary cannot be tolerated.

However, as noted above, the remarks of the District Judge that the

appellant was, `irresponsible and indisciplined officer who has no

regard for superiors or truth' have been expunged/substituted by the

Inspecting Judge. The effect of such expunction/substitution is that

the appellant cannot be considered an irresponsible or indisciplined

officer on the basis of remarks recorded by the District Judge. The

gravity of what has been recorded in column (3) is, thus, lost.

Moreover, the root of the problem between the two senior judicial

officers appears to be clash of ego. In the words of Samuel

Johnson, every man is of importance to himself. The observation

noted in column (3), `He never came to me in the chamber or at the

residence to discuss any problem relating to Nazarat' indicates that

the District Judge was not happy with the appellant for having not

given due importance to him.

18. Be that as it may, due to consideration of the remarks

recorded by the District Judge and not taking into consideration that

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such remarks were expunged/substituted as communicated to the

appellant vide communication dated October 21, 1997, the very

consideration of the appellant's case for promotion in the substantive

vacancy in UPHJS under the 1975 Rules by the selection committee

in its meeting dated May 18, 1998 and by the full court in its meeting

held on July 11, 1998 gets seriously and vitally affected.

19. It is important to notice that in the counter affidavit filed

on behalf of respondent no. 2, it has been stated that appellant's

matter for promotion in the substantive vacancy in UPHJS was again

considered by the selection committee on November 24, 2004 but in

view of the matter being sub judice, it was resolved that appellant's

name could not be considered for regular appointment under Rule

22(1) of the 1975 Rules and the above report of the selection

committee was accepted by the full court in its meeting held on

February 5, 2005.

20. In what we have discussed above, it is not necessary to

consider the submissions of the learned senior counsel for the

appellant that under Chapter III, Rule 4(B)(3) and Rule 4(C)(16) of

the Allahabad High Court Rules (Rules of the Court), 1952 framed

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under Article 225 of the Constitution of India, the District Judge had

no competence to make any remark with regard to the appellant.

21. In our view, the matter for the appellant's promotion in

the substantive vacancy in UPHJS which was considered by the

selection committee on May 18, 1998 and by the full court on July

11, 1998 needs to be reconsidered in light of the discussion made

above and in accordance with law. Since the appellant is likely to

superannuate shortly, we expect the High Court on its administrative

side to complete this exercise as early as possible and preferably

within one month from the date of the communication of this order.

22. The appeal is allowed, as indicated above, with no order

as to costs.

...........................J

(R.M. LODHA)

......................................J.

(JAGDISH SINGH KHEHAR )

NEW DELHI

NOVEMBER 15, 2011.

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