Pyare Mohan Lal vs State Of Jharkhand & Ors

Pyare Mohan Lal ..... Petitioner

Versus

State of Jharkhand & Ors. ..... Respondents

JUDGMENT

Dr. B.S. CHAUHAN, J.

1. This writ petition has been filed against the order dated

20.5.2003, passed by the State of Jharkhand - Respondent No. 2,

giving compulsory retirement to the petitioner, a Judicial Officer of

the State of Jharkhand, on the recommendation of the High Court of

Jharkhand - the respondent No. 3 on administrative side.

2. Facts and circumstances giving rise to this case are that the

petitioner was selected in the Bihar Civil Services (Judicial Branch) in 1982 and was appointed to the post of Munsif by the State and was

confirmed in the grade of Munsif vide order dated 11th March, 1987.

He was further promoted to the junior selection grade post in the cadre

of Munsif of the Bihar Judicial Service vide order dated 23rd

September, 1994. The Patna High Court issued Notification dated 10th

March, 2001 promoting the petitioner to the post of Subordinate

Judge.

3. Consequent to the bifurcation of the State of Bihar and

formation of the State of Jharkhand, the services of the petitioner were

allocated to the Jharkhand State by the order of the Ministry of

Personnel, Public Grievances and Pension (Department of Personnel

and Training), New Delhi dated 28th March, 2001. The petitioner was

appointed as a Sub-Judge, Ranchi, vide Notification dated 21st April,

2001, issued by the High Court of Jharkhand and, subsequently, the

petitioner was placed at the disposal of the State of Jharkhand as

Under Secretary-cum-Deputy Legal Remembrancer and Law Officer

in the Law Department vide order dated 1st August, 2001.

4. The High Court of Jharkhand recommended the name of the

petitioner along with others for promotion to the post of Additional

2 District Judge on Ad hoc basis vide letter dated 21st October, 2001.

The petitioner was appointed as Additional District and Sessions

Judge, (Fast Track), on ad-hoc basis and was posted at Ranchi vide

order dated 14th December, 2001. The High Court of Jharkhand on

administrative side vide order dated 12th May, 2003 recommended

compulsory retirement of six judicial officers including the petitioner,

and in pursuance thereof, the Respondent No. 2 issued a consequential

order of compulsory retirement of the petitioner dated 20th May, 2003,

in public interest, invoking the provisions of Rule 74(b)(ii) of the

Jharkhand Civil Services Code (hereinafter called the Code) along

with five other judicial officers. Hence, this writ petition.

5. Shri Sunil Kumar, learned Senior Advocate appearing for the

petitioner, has submitted that the petitioner had unblemished service

record and there was no adverse entry against him and he had even

been promoted to the post of Additional District and Sessions Judge,

(Fast Track), thus adverse entries, if any, stood washed off as the

same had been prior to the date of his promotion. The order of

compulsory retirement passed by Respondent No. 2 is arbitrary,

unreasonable and unwarranted. The adverse entries on the basis of

which the petitioner had been given compulsory retirement had not

3 been communicated to the petitioner. The representation made by the

petitioner against the said adverse entries has not been disposed of till

date. The order of compulsory retirement as far as the petitioner is

concerned cannot be held to be in public interest; there was no

material whatsoever to support the conclusion reached by the High

Court of Jharkhand. The recommendation made by the High Court is

unreasonable and arbitrary. Order impugned casts stigma. Rule

74(b)(ii) of the Code empowers competent authorities only to get rid

of and to do away with the services of employees, who have lost their

utility, became useless and whose further continuance in service is not

in public interest. There was no occasion for the respondents to pass

an order of compulsory retirement of the petitioner in absence of any

material to justify such an order. Thus, the order impugned is liable to

be held to be illegal and invalid. Petition deserves to be allowed.

6. On the other hand, Shri Ashok Mathur and Shri Anil Kumar

Jha, learned counsel appearing for the respondents, have vehemently

opposed the petition contending that there had been large number of

adverse entries against the petitioner and the said entries were not

expunged; his disposal was very low; he did not enjoy a good

reputation as several entries relating to his integrity being doubtful

4 had been recorded. Thus, he could not claim himself to be fit to be

retained in judicial service. The petition lacks merit and is liable to be

dismissed.

7. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

COMPULSORY RETIREMENT

8. In Baikuntha Nath Das & Anr. Vs. Chief District Medical

Officer, Baripada & Anr., AIR 1992 SC 1020, this Court has laid

down certain criteria for the Courts, on which it can interfere with an

order of compulsory retirement and they include mala fides, if the

order is based on no evidence, or if the order is arbitrary in the sense

that no reasonable person would form the requisite opinion on the

given material, i.e. if it is found to be a perverse order. The Court held

as under:-

"(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government.

5 (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or the Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary- in the sense that no reasonable person would form the requisite opinion on the given material : in short, if it is found to be a perverse order.

(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter- of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.

(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference." (Emphasis added).

9. Similar view has been reiterated by this Court in Posts and

Telegraphs Board & Ors. Vs. C.S.N. Murthy, AIR 1992 SC 1368;

Sukhdeo Vs. Commissioner Amravati Division, Amravati & Anr.,

6 (1996) 5 SCC 103; I.K. Mishra Vs. Union of India & Ors., AIR

1997 SC 3740; M.S. Bindra Vs. Union of India & Ors., AIR 1998

SC 3058; and Rajat Baran Roy & Ors. Vs. State of West Bengal &

Ors., AIR 1999 SC 1661. This Court observed that there was a very

limited scope of judicial review in a case of compulsory retirement

and it was permissible only on the grounds of non-application of

mind; mala fides; or want of material particulars. Power to retire

compulsorily a Government servant in terms of Service Rules is

absolute, provided the authority concerned forms a bona fide opinion

that compulsory retirement is in public interest.

10. In State of Gujarat & Anr. Vs. Suryakant Chunilal Shah,

(1999) 1 SCC 529, this Court held that while considering the case of

an employee for compulsory retirement, public interest is of

paramount importance. The dishonest, corrupt and dead-wood deserve

to be dispensed with. How efficient and honest an employee is, is to

be assessed on the basis of the material on record, which may also be

ascertained from confidential reports. However, there must be some

tangible material against the employee warranting his compulsory

retirement.

7

11. In State of U.P. & Anr. Vs. Bihari Lal, AIR 1995 SC 1161,

this Court held that if the general reputation of an employee is not

good, though there may not be any tangible material against him,

he may be given compulsory retirement in public interest and judicial

review of such order is permissible only on limited grounds. The

Court further held that:

".....What is needed to be looked into, is the bona fide decision taken in public interest to augment efficiency in the public service."

12. In State of U.P. & Ors. Vs. Vijay Kumar Jain, AIR 2002 SC

1345, this Court while dealing with the issue observed as under:

"Withholding of integrity of a government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13-6-1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory retirement. During pendency of the writ petition in the High Court, the U.P. Services Tribunal on a claim petition filed by the respondent, shifted the entry from 1997-98 to 1983-84. Shifting of the said entry to a different period or entry going beyond ten years of passing of the order of compulsory retirement does not mean that vigour and sting of the adverse entry is lost. Vigour or sting of an adverse entry is not wiped out, merely it is relatable to 11th or 12th year of passing of the order of compulsory

8 retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from service, was duly considered by the State Government and the said single adverse entry in itself was sufficient to compulsorily retire the respondent from service. We are, therefore, of the view that entire service record or confidential report with emphasis on the later entries in the character roll can be taken into account by the Government while considering a case for compulsory retirement of a government servant. (Emphasis added)

13. In Jugal Chandra Saikia Vs. State of Assam & Anr., AIR

2003 SC 1362, this Court held that where the screening committee is

consisting of responsible officers of the State and they have

examined/assessed the entire service record and formed the opinion

objectively as to whether any employee is fit to be retained in service

or not, in the absence of any allegation of mala fides, there is no scope

of a judicial review against such an order.

14. In Nawal Singh Vs. State of U.P. & Anr., AIR 2003 SC 4303,

a similar view has been reiterated. The Court observed as under:

"At the outset, it is to be reiterated that the judicial service is not a service in the sense of an employment. Judges are discharging their functions while exercising the sovereign judicial

9 power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further, the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because the order of compulsory retirement is based on the subjective satisfaction of the authority.

......Further, it is impossible to prove by positive evidence the basis for doubting the integrity of the judicial officer. In the present-day system, reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the performance of the officer concerned from close quarters and formation of his opinion with regard to the overall reputation enjoyed by the officer concerned would be the basis. .....the lower judiciary is the foundation of the judicial system. We hope that the High Courts would take appropriate steps regularly for weeding out the dead wood or the persons polluting the justice delivery system".

15. In Chandra Singh & Ors. Vs. State of Rajasthan & Anr.,

AIR 2003 SC 2889, this Court after examining the entire evidence on

record came to the conclusion that the compulsory retirement awarded

to the appellant therein, Chandra Singh, a Judicial Officer, was not in

consonance with law. However, considering the report of the

10 Committee and taking note of the adverse remarks made against him,

the Court refused to grant him any relief. The relevant part of the

judgment reads as under:

"It will bear repetition to state that in terms of Rule 53 of the Pension Rules, an order for compulsory retirement can be passed only in the event the same is in public interest and/or three months' notice or three months' pay in lieu thereof had been given. Neither of the aforementioned conditions had been complied with.... We have, therefore, no option but to hold that the actions on the part of the High Court or the State in compulsorily retiring the appellants herein were illegal.

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

1. State of Assam v. Ranga Mohd., AIR 1967 SC 903 (five Judges)

2. Samsher Singh v. State of Punjab, AIR 1974 SC 2192 (seven Judges)

3. High Court of Judicature at Bombay v.

Shirishkumar Rangrao Patil, AIR 1997 SC 2631.

xxx xxx xxx In the instant case, we are dealing with the higher judicial officers. We have already noticed the observations made by the Committee of three Judges. The nature of judicial service is such that

11 it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility."

16. In Shiv Dayal Gupta Vs. State of Rajasthan & Anr., (2005)

13 SCC 581, this Court examined the case of the compulsory

retirement of a Judicial Officer and came to the conclusion that the

Review Committee had made an overall assessment considering the

entire service record of the said officer and came to the conclusion

that continuance of the said officer in service would be a liability to

the Department and adverse to public interest as his ACRs. revealed

that he was poor in writing the judgments and was advised to improve

the same. His judicial work was found unsatisfactory and he had been

advised to improve the same. His integrity was found doubtful in the

year 1983. He had earlier been superseded while being considered for

promotion in 1983 and he had been given an adverse entry in 1993

that he failed to inspire confidence in subordinate staff and lawyers

and had a low rate of disposal. On the basis of the aforesaid adverse

entries, he was given compulsory retirement vide order dated

9.11.2000. This Court refused to interfere with the said order in view

of the fact that he could not raise proper allegations of mala fides or

12 establish that the order of compulsory retirement was passed without

application of mind. While deciding the said case, the court placed

reliance upon the judgment of this Court in Vijay Kumar Jain

(supra).

17. In M.P. State Cooperative Dairy Federation Ltd. & Anr. Vs.

Rajnesh Kumar Jamindar & Ors., (2009) 15 SCC 221, this Court

held that judicial review of an order of compulsory retirement is

permissible if the order is perverse or arbitrary, as also where there is

non-compliance of statutory duty by statutory authority but the court

should not go into the factual findings. The factors not germane for

passing an order of compulsory retirement should not be taken into

consideration. The criteria and rules adopted by the employer must be

adhered to, to determine whether the employee had become liable for

compulsory retirement. An authority discharging a public function

must act fairly.

18. Thus, the law on the point can be summarised to the effect that

an order of compulsory retirement is not a punishment and it does not

imply stigma unless such order is passed to impose a punishment for a

proved misconduct, as prescribed in the Statutory Rules. (See

Surender Kumar Vs. Union of India & Ors., (2010) 1 SCC 158).

13 The Authority must consider and examine the over-all effect of the

entries of the officer concerned and not an isolated entry, as it may

well be in some cases that in spite of satisfactory performance, the

authority may desire to compulsorily retire an employee in public

interest, as in the opinion of the said Authority, the post has to be

manned by a more efficient and dynamic person and if there is

sufficient material on record to show that the employee "rendered

himself a liability to the institution", there is no occasion for the Court

to interfere in the exercise of its limited power of judicial review.

WASHED OFF THEORY

19. In State of Punjab Vs. Dewan Chuni Lal, AIR 1970 SC 2086,

a two-Judge Bench of this Court held that adverse entries regarding

the dishonesty and inefficiency of the government employee in his

ACRs have to be ignored if, subsequent to recording of the same, he

had been allowed to cross the efficiency bar, as it would mean that

while permitting him to cross the efficiency bar such entries had been

considered and were not found of serious nature for the purpose of

crossing the efficiency bar.

14

20. Similarly, a two-Judge Bench of this Court in Baidyanath

Mahapatra Vs. State of Orissa & Anr., AIR 1989 SC 2218, had

taken a similar view on the issue observing that adverse entries

awarded to the employee in the remote past lost significance in view

of the fact that he had subsequently been promoted to the higher post,

for the reason that while considering the case for promotion he had

been found to possess eligibility and suitability and if such entry did

not reflect deficiency in his work and conduct for the purpose of

promotion, it would be difficult to comprehend how such an adverse

entry could be pressed into service for retiring him compulsorily.

When a government servant is promoted to higher post on the basis of

merit and selection, adverse entries if any contained in his service

record lose their significance and remain on record as part of past

history.

This view has been adopted by this Court in Baikuntha Nath

Das (supra).

21. However, a three-Judge Bench of this Court in State of Orissa

& Ors. Vs. Ram Chandra Das, AIR 1996 SC 2436, had taken a

different view as it had been held therein that such entries still remain

part of the record for overall consideration to retire a government

15 servant compulsorily. The object always is public interest. Therefore,

such entries do not lose significance, even if the employee has

subsequently been promoted. The Court held as under:-

"Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of service or qualified period of service for pension." (Emphasis added)

22. This judgment has been approved and followed by this court in

State of Gujarat Vs. Umedbhai M. Patel, AIR 2001 SC 1109,

emphasising that the "entire record" of the government servant is to

be examined.

23. In Vijay Kumar Jain, (supra), this Court held that the vigour

or sting of an entry does not get wiped out, particularly, while

considering the case of employee for giving him compulsory

16 retirement, as it requires the examination of the entire service records,

including character rolls and confidential reports. `Vigour or sting of

an adverse entry is not wiped out' merely it relates to the remote past.

There may be a single adverse entry of integrity which may be

sufficient to compulsorily retire the government servant.

Larger Benchs' Judgment:

24. In State of U.P. Vs. Ram Chandra Trivedi, AIR 1976 SC

2547, this Court observed that it must be borne in mind that in cases

where there is any conflict between the views expressed by larger and

smaller Bench of this Court, the court cannot disregard or skirt the

views expressed by the larger Bench.

25. In Smt. Triveniben Vs. State of Gujarat, AIR 1989 SC 1335,

this Court considered the issue and observed as under:

"......The practice over the years has been that a larger bench straightway considers the correctness of and if necessary overrules the view of a smaller bench. This practice has been held to be a crystallised rule of law in a recent decision by a Special Bench of seven learned Judges. In A. R. Antulay v. R. S. Nayak, AIR 1988 SC 1531, Sabyasachi Mukharji, J., speaking for the majority said (at p. 1548 of AIR) :

17 `The principle that the size of the bench whether it is comprised of two or three or more judges does not matter, was enunciated in Young v. Bristol Aeroplane Ltd., (1944-2 All ER 293) (supra) and followed by Justice Chinnappa Reddy in Javed Ahmad Abdul Hamid Pawla v. State of Maharashtra, (AIR 1985 SC 231), where it has been held that a Division Bench of two judges, has not been followed by our Courts.

xxxx xxxx xxxx xxxx xxxx The law laid down by this Court is somewhat different. There is a hierarchy within the Court itself here where larger benches overrule smaller benches. See Mattulal v. Radhey Lal, AIR 1974 SC 1596, Union of India v. K. S. Subramanian, AIR 1976 SC 2433 at 2437; and State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547 at p. 2555. This is the practice followed by this Court and now it is a crystallised rule of law.' The answer to the question posed in Javed Ahmad case thus stands concluded and it is now not open to any one to contend that a bench of two judges cannot be overruled by a bench of three judges. We must regard this as a final seal to the controversy."

26. In view of the above, the law can be summarised to state that in

case there is a conflict between two or more judgments of this court,

the judgment of the larger Bench is to be followed. More so, the

washed off theory does not have universal application. It may have

18 relevance while considering the case of government servant for

further promotion but not in a case where the employee is being

assessed by the Reviewing Authority to determine whether he is fit to

be retained in service or requires to be given compulsory retirement,

as the Committee is to assess his suitability taking into consideration

his "entire service record".

27. The instant case is to be examined in the light of the aforesaid

settled legal propositions.

28. Some of the entries in the ACRs' of the petitioner of the last

years, which are relevant for this purpose are being mentioned here as

under:

Year Remarks 1996-97 (i) Knowledge - Average

(ii) Promptness in disposal - Out turn Poor

(iii) Net Result - Average 1997-98 (i) Promptness in Disposal - Average

(ii) Efficiency - Average

(iii) Net result - Average officer capable of improvement 1998-99 (i) Promptness in disposal - Average

(ii) Efficiency - Average

(iii) Net result - out-turn capable of improvement 1999-2000 (i) Promptness in disposal - Average

(ii) Efficiency - Average

19

(iii) Reputation - Not good Is he fit for exercise of any enhanced power - No

Beside these, adverse remarks made by the inspecting Judge

against the petitioner are given as under:

Year Remarks 30.8.1997 (i) Knowledge - Average, extensive study required. (ii) Promptness in disposal - Not upto mark

(iii) Reputation - Some whispers are there but nothing concrete could be found.

2001-02 (i) Judgment - Average i.e. B

(ii) Efficiency - Average (B)

(iii) Integrity - Seriously Doubtful

29. It is evident from the aforesaid service record of the petitioner

that he remained an average officer throughout his service career and

could never improve. His out turn had been poor; he had been

given adverse entries regarding his integrity/reputation as not good in

the years 1999-2000 and remarks to that effect by the Inspecting

Judges in 1997 and 2001-2002. The petitioner had made a bald

assertion that the adverse entries have not yet been communicated to

him. It has been repeatedly submitted by him that representations

made by him against the said adverse entries had not been disposed

20 of. Indisputably, uncommunicated adverse entries could be taken into

account for the purpose of assessing an officer for compulsory

retirement. The petitioner has not disclosed on what dates the

representations against the adverse entries had been made. The

petitioner had not challenged the said adverse entries, rather he

considered it appropriate to challenge only the order of compulsory

retirement which has been a consequential effect of such adverse

entries. The law requires the Authority to consider the "entire service

record" of the employee while assessing whether he can be given

compulsory retirement irrespective of the fact that the adverse entries

had not been communicated to him and the officer had been promoted

earlier in spite of those adverse entries. More so, a single adverse

entry regarding the integrity of an officer even in remote past is

sufficient to award compulsory retirement. The case of a Judicial

Officer is required to be examined, treating him to be differently from

other wings of the society, as he is serving the State in a different

capacity. The case of a Judicial Officer is considered by a Committee

of Judges of the High Court duly constituted by Hon'ble the Chief

Justice and then the report of the Committee is placed before the Full

Court. A decision is taken by the Full Court after due deliberation on

21 the matter. Therefore, there is hardly any chance to make the

allegations of non- application of mind or mala fide.

30. Be that as it may, the service record of the petitioner revealed

that he had not been promoted in the regular cadre of the District

Judge as he was not found fit for the same because of the adverse

entries. Petitioner was promoted as Additional District Judge on Ad

hoc basis and posted in the Fast Track Court. It was definitely not a

promotion on merit (selection). The High Court had objectively

decided to recommend his compulsory retirement and the State

Authorities acted accordingly. No fault can be found with the

decision making process or with the decision.

31. We do not find any force in the submissions made by Shri

Sunil Kumar, learned senior counsel appearing for the petitioner that

the counter affidavit filed by the High Court and the State reveal that

certain reports called for from the District Judge had been considered,

though such reports were not even available, and therefore, the

affidavit to that extent is mis-leading. In fact, it is evident from the

record that at the time of making of the note by the Registry for the

Full court, it had been mentioned that report was still awaited.

22 However, by the time the Full Court was held the report had been

made available and was duly considered. Shri Ashok Mathur and

Shri Anil Kr. Jha, learned counsel appearing for the respondents had

placed before us the original record relating to the services of the

petitioner and the report submitted by the Judicial Commissioner,

Ranchi dated 5.4.2003, who after taking into consideration a large

number of facts recorded the following conclusion:

"However, on confidential enquiry I have found that his general reputation is not so good, but still no one came to me with any specific case against his general reputation."

Thus, the aforesaid submission made on behalf of the petitioner is

preposterous.

32. Placing reliance on the judgments of this Court in M.S. Bindra

(supra) and Baldev Raj Chadha Vs. Union of India & Ors., AIR

1981 SC 70, it has been canvassed on behalf of the petitioner that

adverse entries had not been made in bona fide manner and as per the

requirement prescribed by circulars etc. Therefore, the consequential

order of compulsory retirement is illegal. There is no factual

foundation on the basis of which such an assertion can be examined,

23 nor there is a challenge in the writ petition to the said adverse entries.

Petitioner sought quashing of order of compulsory retirement dated

20.5.2003 and not quashing of the adverse entries. Relief not

specifically sought cannot be granted by the court. Therefore, there is

no occasion for us to probe the issue further.

33. In view of the above, we do not find any cogent reason to

interfere with the impugned order. The petition lacks merit and is

accordingly dismissed. No costs.

..................................J. (J.M. PANCHAL)

.................................J. (DEEPAK VERMA)

................................J. (Dr. B.S. CHAUHAN)

New Delhi, September 10, 2010

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