Rajendra Singh Verma (D) Thr.Lrs vs Lt.Governor Of Nct Of Delhi & Anr

2 2. These appeals, by the grant of special leave, are directed

against common judgment dated May 2, 2008 rendered by the

Division Bench of the High Court of Delhi in C.W.P. No. 2157

of 2002, C.W.P. No.1965 of 2002 and C.W.P. No.2362 of 2002.

The appellants were the Members of Delhi Higher Judicial

Service (`D.H.J.S.', for short). Mr. M.S.Rohilla and Mr.

P.D.Gupta were compulsorily retired from service under Rule

56 (j) of the Fundamental Rules, read with Rule 33 of the Delhi

Judicial Service Rules 1970, whereas deceased Mr. R.S.Verma

was compulsorily retired from service under Rule 16(3) of All

India Service (Death-cum-Retirement Benefit) Rules 1958 read

with Rule 27 of the Delhi Higher Judicial Service Rules 1970,

on different dates. They had challenged orders of their

compulsory retirement from service by filing Writ Petitions

under Article 226. Though the result of each appeal would

depend on its own facts, having regard to the commonality of

submissions on legal aspects, this Court had tagged these

cases together and heard them one after the other. This Court

proposes to dispose of the three appeals, by this common

Judgment for the sake of avoiding repetitiveness of legal

3

principles. However, the Court proposes to consider each case

on its own merits.

With these observations, the Court proposes to deal with

appeal arising out of Special Leave to Appeal (Civil) No.27028

of 2008, filed by Mr. Rajendra Singh Verma against decision in

C.W.P. No.2157 of 2002. Mr. Verma was born on April 13,

1950. After enrolling himself as an advocate, he had started

legal practice in the year 1980. In the year 1994 applications

were invited from practicing advocates for direct recruitment

to the D.H.J.S. Mr. Verma had also applied pursuant to the

said advertisement and after interview he was selected and

was offered appointment to D.H.J.S. He joined the service on

9.3.1995 and was aged about 45 years on the date of joining

service. He worked as Additional District Judge at

Karkardooma Courts, Shahdara, Delhi. For the year 1995-

1996 he was given a `B' remark in the A.C.R., which means his

performance was average. From April 1, 1999 to December 7,

2000, he functioned as Sessions Judge, Tis Hazari, Delhi.

4 3. By the year 2000 he had rendered service of five years.

It may be mentioned that a Screening Committee consisting of

two Hon'ble Judges of Delhi High Court was constituted for

screening the cases of those officers of the D.H.J.S. and Delhi

Judicial Service, who had either completed thirty years of

service or had attained the age of 50/55 years and for

considering the question whether those Judicial Officers

should be continued in service or should be prematurely

retired in public interest. The Screening Committee

considered the cases of several officers including that of Mr.

Verma under Rule 56 (j) of the Fundamental Rules. The

learned members of Screening Committee perused service

record including the ACR dossiers of the Judicial Officers but

did not find, for the time being, any Officer who could be

retired prematurely in public interest as on July 17, 2000. A

copy of the abstracts from the Minutes of the Meeting of the

Full Court of Delhi High Court held on July 22, 2000 indicates

that the Full Court had accepted the report of the Screening

Committee.

5 However, by an order dated December 7, 2000 which was

served upon Mr. Verma on December 8, 2000, judicial work

entrusted to him was withdrawn with immediate effect. He

was made in-charge of all the record rooms in Tis Hazari

Courts, Delhi. ACRs of four years i.e. from the year 1997 to

the year 2000 were not communicated to him on due dates.

From the record it is evident that ACRs of Mr. Verma for the

years 1997, 1998 and 1999 were written in one go and he was

awarded `C` remark, which means below average. The ACRs

for above mentioned three years were communicated to him on

January 8, 2001 whereupon he had made representation

against the same on February 16, 2001.

4. In the A.C.R. for the year 2000, he was given `C-' remark,

which means his integrity was doubtful. While

communicating the ACR for the year 2000, he was given a

time of six weeks to make representation against the same.

Such communication was received by him on September 25,

2001. On September 21, 2001 the Screening Committee of the

High Court decided to retire Mr. Verma compulsorily from

6

service. The Full Court of the Delhi High Court accepted the

recommendation made by the Screening Committee in its

meeting held on September 22, 2001. After acceptance of

recommendation of the Screening Committee by the Full

Court, entire work entrusted to him was withdrawn by a letter

dated September 24, 2001. He made representation dated

September 25, 2001 against the proposed order retiring him

compulsorily from service. He was thereafter served with

order dated September 27, 2001 retiring him compulsorily

from service with effect from September 28, 2001. The record

shows that the representation dated 16.2.2001 made by Mr.

Verma against ACRs for the years 1997, 1998 and 1999 was

rejected on October 5, 2001. Against the A.C.R. for the year

2000, Mr. Verma had made a representation dated October

13, 2001, which was received by the High Court on September

25, 2001. This was rejected by the High Court vide order

dated November 25, 2001.

5. Thereupon Mr. Verma had filed C.W.P. No. 2157 of 2002

before the Delhi High Court challenging the order of

7

compulsory retirement dated September 27, 2001. The reliefs

claimed in the petition filed by him are enumerated in detail in

paragraph 7 of the impugned judgment and, therefore, it is not

necessary to reproduce the same in this judgment. The

prayers made by Mr. Verma in his Writ Petition were

essentially based on the following grounds, namely, (1) ACRs

for the years 1997, 1998 and 1999 were not recorded as and

when they fell due and, therefore, he had reason to believe

that nothing adverse was found against his judicial work

and/or conduct whereas recording of ACRs for the three years

at the same time on January 3, 2001, was illegal. (2) There

was no inspection by the Hon'ble Inspecting Judge for the

years 1997, 1998, 1999 and 2000 as a result of which the

decision to retire him prematurely from service on the basis

that his performance was below average and his integrity was

doubtful, was bad in law. (3) In July, 2000 when the Screening

Committee had reviewed the cases of various Officers of

D.H.J.S. for premature retirement in public interest, no

recommendation was made to retire anyone including him,

compulsorily from service and thus review of his case on

8

September 21, 2001 by the Screening Committee, on the same

material, was impermissible. (4) Adverse entry for the year

2000 was served upon him on September 25, 2001 vide a

letter dated September 21, 2001 from the Registrar (Vigilance),

High Court whereas the recommendation made by the

Screening Committee on September 21, 2001 to retire him

compulsorily from service was accepted by the Full Court in its

meeting held on September 22, 2001, on the basis of which

the Lt. Governor of Delhi passed the order of compulsory

retirement on September 27, 2001 which was communicated

to him on September 28, 2001 and as he was deprived of right

to make meaningful representation against ACR of the year

2000, the order retiring him compulsorily from service was

liable to be set aside. (5) His representation against the entries

for the years 1997, 1998 and 1999 was rejected vide letter

dated October 5, 2001, which was received by him on October

8, 2001 whereas his representation dated October 13, 2001

against the entry for the year 2000 was dismissed by order

dated April 5, 2002, before which order of compulsory

retirement from service was passed against him on September

9

28, 2001 and thus non-consideration of representation before

passing order of compulsory retirement had vitiated order of

his compulsory retirement. (6) Before taking decision to retire

him prematurely from service opportunity of being heard was

not given to him. (7) The circumstances of the case indicated

that the Order of compulsorily retirement passed against him

was punitive, arbitrary, mala fide and in violation of the

principles of natural justice.

6. In support of these submissions, Mr. Verma had relied

upon decisions in (a) Baikunth Nath Das Vs. Chief District

Medical Officer, Baripada (1992) 2 SCC 299; (b) Madan

Mohan Choudhary Vs. State of Bihar (1999) 3 SCC 396; (c)

High Court of Punjab & Haryana Vs. I.C. Jain (1999) 4 SCC

579; (d) High Court of Judicature at Allahabad Vs. Sarnam

Singh & Another (2000) 2 SCC 339; (e) Bishwanath Prasad

Singh Vs. State of Bihar (2001) 2 SCC 305; (f) State of U.P.

Vs Yamuna Shanker Mishra (1997) 4 SCC 7; (g) Registrar,

High Court of Madras Vs. R. Rajiah (1988) 3 SCC 211; (h)

M.S. Bindra Vs. Union of India & Others (1998) 7 SCC 310;

10 (i) Ram Ekbal Sharma Vs. State of Bihar & Another (1990) 3

SCC 504; (j) Anoop Jaiswal Vs. Govt. of India (1984) 2 SCC

369; and (k) Padam Singh Vs. Union of India & Others,

2000 (III) AD (Delhi) 430 (D.B.).

7. On Service of notice, the respondent No.1, namely, the Lt.

Governor, Administrator (Government of N.C.T. of Delhi) and

the respondent No.2, i.e., the High Court of Delhi had filed

their separate counter affidavits opposing the Writ Petition.

The High Court, in its reply, amongst other things had

explained that the date of birth of Mr. Verma was April 13,

1950 and, therefore, review of his case on September 21, 2001

when he had completed fifty one years of age was perfectly

legal. According to the High Court, his case was reviewed by

the Screening Committee on September 21, 2001 and the

Committee had recommended that he should be compulsorily

retired from service keeping in view his overall service record,

ACRs and performance. The High Court mentioned in its reply

that the recommendation made by the Screening Committee

was accepted by the Full Court on September 22, 2001. What

11

was asserted by the High Court was that the decision of the

Full Court was just and reasonable having regard to the ACRs

of Mr. Verma.

8. The Division Bench hearing the petition filed by Mr.

Verma had summoned the entire service record

relating to his case. After hearing the learned

counsel for the parties and considering the

materials on the record, the High Court observed

that a mere glance at the ACRs of Mr. Verma and

other records was enough to conclude that the

decision to retire him compulsorily from service was

well founded. The High Court discussed principles

laid down by this Court in the case of Baikunth

Nath Das (supra) with regard to compulsory

retirement under Rule 56(j) of the Fundamental

Rules, and also took into consideration the

principles of law as to when interference by a writ

Court with the decision of compulsory retirement

would be justified. Having noticed the law, the High

12

Court held that principles of natural justice were

not attracted in case of compulsory retirement. The

High Court observed that in this case the ACRs for

three years were recorded at the same time which

according to High Court was not proper, but held

that there is no absolute proposition of law that

recording of ACRs at once would be perse illegal.

The High Court expressed the view that if good

reasons were noted for which the ACRs could not be

recorded by stipulated dates and the matter of

recording of ACRs had to be deferred, the recording

of ACRs of few years at one point of time would not

render the same illegal. The High Court noticed the

reasons as to why ACRs for the years 1997, 1998

and 1999 were recorded in one go, and thereafter

held that there was sufficient explanation for

recording the ACRs of three years at one time. The

argument that there was no material justifying

recording such ACRs was considered to be

misconceived in view of settled legal position.

13 According to the High Court the entire service

record of Mr. Verma from 1995 to 2000 revealed

that even for one year he had not earned "Above

Average" remark and his performance and conduct

as a judicial officer in fact had kept on deteriorating

and shown a downward trend. After taking into

consideration the law on the point, the High Court

concluded that action under Fundamental Rule

56(j) need not await the disposal of the

representation made against the ACRs and,

therefore, the order of compulsory retirement

passed against him after taking into consideration

the ACR for the year 2000 was not bad in law.

9. In view of the above conclusions the High Court

dismissed the petition which has given rise to the

above numbered appeal.

10. It may be mentioned that during the pendency of

the SLP the original petitioner that is Mr. Rajendra

Singh Verma expired in October, 2009. Therefore,

14

the appeal is being prosecuted by his legal

representatives.

11. The facts giving rise to the appeal arising out of SLP

(C) No. 314 of 2009, are as under:

The appellant Mr. Purshottam Das Gupta was born on

24.12.1949. He joined Delhi Judicial Service on 28.01.1978.

He was granted selection grade on 03.06.1993 retrospectively

with effect from 31.05.1991. He joined as Additional Senior

Civil Judge Delhi on 06.01.1996. According to him his work

and conduct from 1978 to 1992 was graded as "B", which

means his performance was average. In the year 1995 the

Inspecting Judge reported that "I have not inspected his

Court, but I have heard complaints about integrity", and left

column nos. 6 and 7 to be filled up by Full Court. On

18.05.1996 the Full Court recorded ACR for the years 1994-95

as "C-Integrity Doubtful" and on the basis of the same denied

promotion to him to Delhi Higher Judicial Service. Mr. Gupta

filed a representation against adverse ACR for the year 1994-

95 on 10.07.1996. The High Court rejected the same by an

15

order dated 05.09.1997. On 26.09.1997 the Full Court

recorded his ACR for the year 1996 as "B". He filed W.P.(C)

No. 4334 of 1997 against his non-promotion to Delhi Higher

Judicial Services and also prayed to expunge adverse remark

for the year 1994-95. Pending the said petition, the Full Court

on 22.05.1998 recorded his ACR for the year 1997 as "B".

W.P.(C) No. 4334 of 1997 filed by Mr. Gupta was allowed by a

Single Judge of the High Court vide Judgment dated

28.05.1999 and the adverse remark for the year 1994-95 was

quashed. Thereupon, he was granted deemed promotion with

seniority. The High Court on its administrative side filed LPA

No. 329 of 1999 against Judgment dated 28.05.1999. On

24.12.1999 he attained the age of 50 years. In July 2000 the

Screening Committee had reviewed the cases of various

officers of DHJS including that of Mr. Gupta for premature

retirement in public interest. The Screening Committee gave

report dated July 17, 2000. In the report it was mentioned

that the Members of the Screening Committee had gone

through the service record including the ACR dossiers of the

officers of Delhi Higher Judicial Service and Delhi Judicial

16

Service who were within the zone of consideration for being

considered for premature retirement in public interest at the

age of 50/55 years, but they did not find, for the time being,

any Officer who could be retired prematurely in public

interest. The Full Court considered the report of Screening

Committee in its meeting held on 22.07.2000 and accepted the

report. However, on 29.07.2000 the Full Court recorded ACR

of the appellant for the year 1999 as "C". On ACR being

communicated, to him, he filed representation dated

08.09.2000.

12. The LPA No. 329 of 1997 filed by the High Court

against Judgment dated 28.05.1999 rendered by a

Single Judge in W.P.(C) No. 4334 of 1997 which was

filed by the appellant, was accepted by the Division

Bench vide Judgment dated 09.02.2001. The

record does not indicate that the Judgment

rendered by the Division Bench in LPA No. 329 of

1997 was subjected to challenge by Mr. Gupta

17

before higher forum. It may be mentioned that Mr.

Justice M.S.A. Siddiqui was nominated as

Inspecting Judge of the court of Mr. Gupta for the

year 2000. The case of Mr. Gupta is that he had

sent one copy each of his five Judgments delivered

by him during the year 2001, on 18.05.2001 as was

requisitioned by the learned Inspecting Judge. The

learned Inspecting Judge retired on 29.05.2001

without giving his report in respect of Mr. Gupta for

the year 2000. The representation made against

adverse ACR for the year 1999 was rejected by the

High Court vide order dated 01.06.2001. The

record does not show that the said decision was

challenged by Mr. Gupta before higher authority or

in court of law. Thus the ACR for the year 1999

had attained finality. According to Mr. Gupta, Mr.

Justice K.S.Gupta who was not his inspecting

Judge for any year visited his Court on 07.09.2001

and directed him to send copies of three Judgments

delivered by him during 2000, which requisition

18

was complied with by him. The record would

indicate that Mr. Justice K.S.Gupta submitted his

inspection report for the year 2000 on 11.09.2001

for consideration of the Full Court. On 21.09.2001,

the Full Court recorded ACR of Mr. Gupta for the

year 2000 as "C (Integrity Doubtful)". On

21.09.2001 the Screening Committee of the High

Court submitted its report recommending his

premature retirement from service. The Full Court

in its Meeting dated 22.09.2001 recommended

premature retirement of Mr. Gupta to the Lt.

Governor of Delhi (The Administrator). On

21.09.2001 he was communicated ACR for the year

2000 and he was granted six weeks time to file

representation against the same. Meanwhile the

Administrator (Lt. Governor of Delhi) passed an

order dated 27.09.2001, prematurely retiring him

from service, under Fundamental Rule 56 (j) of the

Fundamental Rules read with Rule 33 of Delhi

Judicial Service Rules, 1970. The appellant made a

19

representation against adverse entry in the ACR for

the year 2000, on 29.10.2001 i.e. after the appellant

was retired compulsorily from service. The

appellant also addressed a representation dated

16.11.2001 to the Administrator against the order

retiring him compulsorily from the service. It was

forwarded by the Administrator, to the High Court

for necessary action. The High Court by order dated

12.02.2002 rejected the representation made by the

appellant on 16.11.2001 which was addressed to Lt.

Governor. The representation of the appellant

against adverse ACR for the year 2000 was also

rejected by the High Court vide order dated

16.03.2010. Feeling aggrieved by the order retiring

him compulsorily from service the appellant filed

W.P.(C) No. 2362 of 2002 in the High Court and also

prayed to expunge adverse remarks in his ACR for

the years 1999 and 2000.

20 13. On service of notice the High Court filed reply

affidavit controverting the averments made in the

petition. It was explained in the reply that the

Screening Committee of the two learned Judges had

considered the overall service record of the

appellant and found that his performance and

conduct were recorded as average for the years

1979-80, 1980-81, 1999, 1997 and 1998. The High

Court mentioned in the reply that in the report for

the year 1995, the Inspecting Judge had recorded

that he had heard complaints about the integrity of

the appellant. According to the High Court, again in

the inspection report for the year 1999-2000 the

Inspecting Judge, in respect of judicial reputation of

the appellant and in respect of his impartiality and

integrity, had recorded that the appellant did not

enjoy good reputation. As per the reply, the case of

the appellant was considered for promotion

on18.05.1996 but he was not found fit at that time

and even in the subsequent selections as a result of

21

which he was not promoted. What was highlighted

in the reply was that for the year 1994-95 the

appellant was granted "C-Integrity Doubtful"

whereas for the year 1999 he was granted "C (Below

Average)" and for the year 2000 he was granted "C-

Integrity Doubtful", and keeping in view the over all

assessment of service record, the Screening

Committee had recommended that the appellant be

prematurely retired from service in public interest

forthwith. It was explained in the reply that the

report of the Screening Committee with respect to

number of Judicial Officers was placed before the

Full Court of the High Court and the Full Court

after considering the report of the Screening

Committee and the work and conduct as reflected in

service record and general reputation of the

appellant as well as of other officers, had resolved

that it be recommended to the Administrator,

Government of NCT of Delhi to retire the appellant

and others forthwith in public interest. The High

22

Court mentioned in the reply that the Lt. Governor

had accepted the recommendations of the High

Court and vide order dated 27.09.2001, the

appellant was compulsorily retired in public

interest. It was further stated in the reply that the

appellant had preferred a representation before the

Lt. Governor who after going through his service

record including assessments made by the

Inspecting Judge along with the recommendations

of the Screening Committee and the resolution of

the Full Court of the High Court had concluded that

the appellant was not fit to be continued in service

and his representation was rejected by order dated

13.09.2001 which was communicated to him vide

order dated 27.09.2002.

14. The High Court after hearing the learned Counsel

for the parties concluded that so far as ACR for the

year 1999-2000 was concerned, there was hardly

any reason to interfere with the same. The High

23

Court noted that the ACR for the year 1994-95

recording "C-Integrity Doubtful" was upheld by the

High Court, on judicial side, on the ground that

there was sufficient material to record the said ACR.

According to the High Court the Judgment of the

Division Bench of the Delhi High Court in L.P.A.

was upheld by the Supreme Court which operated

as res-judicata so far as the appellant was

concerned. The High Court, on the basis of said

fact, came to the conclusion that the action of the

High Court on its administrative side, to

compulsorily retire the appellant from service would

be sustainable as easing out a person with integrity

doubtful. The High Court noticed that so far as the

ACR for the year 1999 was concerned the appellant

was given "C" grading i.e. below average and

representation made by him was rejected by the

Full Court in its Meeting held on 19.05.2001. High

Court after looking into the over all career profile of

the appellant held that it was totally untenable to

24

allege that there was any bias or mala fide against

him.

15. In view of the above mentioned conclusions the

High Court rejected the petition.

16. Thereupon, the petitioner filed Review Petition

before the High Court. However, the same was

withdrawn with a view to filing SLP against

Judgment delivered by High Court in W.P.(C) No.

2362 of 2002. After withdrawing the review

application, the appellant filed Special Leave

Petition no. 314 of 2009 which on leave being

granted is treated as an appeal.

17. The facts of the appeal arising out of Special Leave

to Appeal No.27200 of 2008 are as under :-

The appellant, i.e., Mr. M.S. Rohilla was appointed as

Civil/Sub. Judge, in the Subordinate Judicial Services under

the Government of Delhi on May 05, 1972. On June 17, 1975

he was confirmed as an officer in the Delhi Judicial Services.

25

He was granted benefit of Selection Grade on June 3, 1980

and was promoted to the Higher Judicial Services as

Additional District & Sessions Judge on November 1, 1989.

One anonymous complaint was received against him and, after

looking into the same, he was reverted to Subordinate Judicial

Services, as Civil/Sub. Judge by order dated February 15,

1995. Feeling aggrieved, he had preferred W.P. No. 4589 of

1995, challenging his reversion. Meanwhile, he was served

with a communication from the High Court of Delhi dated

October 23, 1997 wherein his A.C.R. for the year 1996 was

graded as `C'. Thereupon he made a representation dated

December 3, 1997 against the said grading. The

representation made by him was rejected on December 2,

1998. The record does not show that any steps were taken by

him to challenge order dated December 2, 1998 by which his

representation against ACR for the year 1996 was rejected.

18. Thereafter he received a communication from the

High Court in the year 1999 whereby he was

informed that in his A.C.R. for the year 1997, he

26

was awarded `B' remark. Again by a

communication dated February 9, 2000 forwarded

by the High Court he was informed that in his ACR

for the year 1998 he was graded `B'. He made a

representation against his ACR for the year 1998 in

the year 2000. In July, 2000 the Screening

Committee consisting of Hon'ble Judges of the High

Court of Delhi reviewed the case of the appellant

with that of several other judicial officers. As

observed earlier, the deliberations made by the

Screening Committee indicate that it did not find,

for the time being, any officer who could be retired

prematurely in public interest as on July 17, 2000.

A copy of the abstracts from the Minutes of the

meeting of the Full Court of High Court of Delhi

held on July 22, 2000 produced on the record of the

case, indicates that Full Court had accepted the

report of the Screening Committee. In July, 2000

he received a communication from the High Court

mentioning that his ACR for the year 1999 was

27

graded as `B'. On 21.9.2001 he received a

communication from the High Court with reference

to the ACR for the year 2000 whereby he was

informed that he was given Grade `C'. It was further

mentioned therein that his integrity was found

doubtful. By the said communication, he was given

six weeks time to make a representation against the

said grading. According to Mr. Rohilla, when he

was awaiting the response to his previous

representations made with reference to the ACRs for

the years 1998 and 1999 and when he was yet to

respond to the ACR for the year 2000, he received

communication dated September 27, 2001 from the

High Court prematurely retiring him from service

under rule 56(j) of the fundamental Rules read with

Rule 33 of the Delhi Subordinate Judicial Services.

According to him he made a representation

requesting the respondents to supply the material

upon which decision was taken to prematurely

retire him from service. As he was called upon to

28

make a representation against the ACR for the year

2000 within six weeks from the date of

communication dated 21.9.2001, he filed

representation dated November 3, 2001 against the

same but of no avail. Ultimately, in the month of

March 2002 he filed W.P. No. 1965 of 2002

challenging order of his compulsory retirement from

service. Pending the said Writ Petition, the Full

Bench of the High Court hearing W.P. No. 4589 of

1995 which was directed against the order of his

reversion dated February 15, 1995, allowed the

same by judgment dated May 29, 2006. The result

was that he stood reinstated to his post of

Additional District Judge under Higher Judicial

Services.

19. As is evident from the memorandum of the writ

petition, the order retiring him compulsorily from

service was challenged on several grounds. On

notice being served the respondents namely the

29

Lieutenant Governor as well Delhi High Court had

filed their separate counter affidavits controverting

the claims advanced by Mr. Rohilla in his writ

petition. It was emphasized in the counter affidavit

filed on behalf of the High Court that the petition

filed by Mr. Rohilla proceeded on a mistaken

assumption and incorrect presumption that he was

retired compulsorily from service only upon

consideration of adverse remark `C-' recorded

indicating that his integrity was doubtful for the

year 2000. It was mentioned in the reply that the

Full Court as also the Screening Committee

consisting of the two learned Judges of the Delhi

High Court, had considered his entire service record

which revealed that his performance as a judicial

officer was either average or below average and his

integrity was found doubtful and despite the

passage of time, nothing was done by him to

improve his performance/image. The reply affidavit

proceeded to mention that in so far as the case of

30

Mr. Rohilla was concerned, in its report dated

September 21, 2001 the Screening Committee had

inter alia recorded as under :

"The officer has earned throughout his career

`B' (Average) or C (Below Average) or `C' (Below

Average-Integrity doubtful) reports except for

three years i.e. 1979-80, 1981-82 and 1988

when he could earn only B+ (Good) and for the

years 1997, 1998 and 1999 when he could

earn `B' reports. In the inspection note dated

29th March 1973, the concerned Hon'ble

Inspecting Judge observed that he needed to

be watched so far as his efficiency as a

Judicial Officer was concerned. The District &

Sessions Judge, Delhi, in his report dated

31.5.1973 for the year 1972-73, mentioned

that "a complaint was pending against him in

the High Court about the return of ornaments

in a theft case to a party which was not

entitled". Further, as directed by a Single

Bench of this Court by its order dated

24.7.1973 passed in Criminal Revision No.

428/72 in re: Ramavtar Vs. State, the findings

of the District & Sessions Judge, Delhi,

regarding the conduct of Mr. M.S. Rohilla, then

working as Judicial Magistrate, First Class,

were placed on his personal file. It had been

noted in the aforesaid findings of the District &

Sessions Judge, that Mr. M.S. Rohilla should

not have shown so much indecent haste in

passing the order for handing over the

ornaments to Jawahar Lal Gupta. Though, the

District & Sessions Judge, Delhi, did not find

any malafide on the part of Mr. M.S. Rohilla,

still according to him, he acted in a most

31

injudicious manner due to his inexperience

and suppression of the material facts by the

S.H.O. while sending the report in the above

noted case. The Full Court recorded `C' (Below

Average) remarks for the year 1972-73).

In the Inspection Report dated 29.4.1978

for the year 1977-78, the District & Sessions

Judge, Delhi, observed regarding the

reputation for honesty and impartiality of the

officer that there were complaints of which the

High Court was seized then. In the Inspection

Report dated 7.12.1985, for the year 1983-84,

his efficiency as Judicial Officer was termed as

a mediocre. As regards his reputation for

honesty and impartiality, the District &

Sessions Judge observed that he must improve

his reputation which suffered a set back when

he was Additional Rent Controller. In

Inspection Report for the same year, the

District & Sessions Judge, Delhi, reported that

he did not enjoy good reputation for honesty

among lawyers and general public and that he

was in the habit of drinking and gambling

almost daily. In the Inspection Report dated

7.12.1985 for the year 1984-85, the concerned

Hon'ble Inspecting Judge had observed that

his reputation was under cloud although no

specific instance of corruption had come to his

notice, but watch was called for.

Following adverse remarks were recorded

on the work and conduct of Sh. M.S. Rohilla

for the years mentioned against each :-

Years Adverse Remarks

1972-73 `C' (Below Average)

1993 `C' (Below Average)

(Integrity doubtful)

32

1994 `C' (Below Average)

(Integrity doubtful)

1994 `C' (Below Average)

(Integrity doubtful)

1995 `C' (Below Average)

1996 `C' (Below Average)

2000 (Integrity doubtful)

Keeping in view the over all record of the

officer, we recommend that Mr. M.S. Rohilla be

prematurely retired in public interest

forthwith."

20. According to the High Court it was on this basis

that the case of Mr. Rohilla was recommended for

premature retirement in public interest which

recommendation was accepted by the Full Court.

21. It may be stated that the entire service record of Mr.

Rohilla was called for by the Division Bench. After

taking holistic view of the matter and the facts

projected in the counter affidavit of the High Court,

the Division Bench of the High Court expressed

irresistible opinion that Mr. Rohilla was rightly

retired compulsorily from service under FR 56 (j) of

Fundamental Rules. According to the High Court, it

was totally misconceived and untenable on the part

33

of Mr. Rohilla to argue that the so-called material

relied upon was only one sided view or it was not

known what was the material placed before the

High Court before decision to retire him

compulsorily from service was taken. The High

Court found that there was no force in the

contention that his case could have been considered

for the purpose of compulsory retirement only in the

year 2001 when he was about to attain the age of

55 years in the year 2002. The High Court further

concluded that it was also a wrong premise adopted

by Mr. Rohilla that the High Court had based its

decision solely on the basis of his ACR for the year

2000 wherein it was recorded that his integrity was

doubtful. What was concluded by the High Court

was that the exercise undertaken clearly revealed

that his entire service record was taken into

consideration. In view of the above-mentioned

conclusions as well as other findings, the High

Court has rejected the writ petition filed by Mr.

34

Rohilla giving rise to the appeal by him.

22. It is relevant to notice that though each appeal will

have to be decided on its own facts, certain common

points were raised in three appeals by the learned

counsel for the appellants for consideration of this

Court. Therefore this Court proposes to deal with

those common points raised by the learned counsel

for the appellants for consideration.

23. Normally, an aggrieved civil servant can challenge

an order of compulsory retirement on any of the

following grounds, namely, (a) that the requisite

opinion has not been formed, or (b) that the

decision is based on collateral grounds, or (c) that it

is an arbitrary decision. If the civil servant is able

to establish that the order of compulsory retirement

suffers from any of the above infirmities, the court

has jurisdiction to quash the same. In the light of

the above stated position of law, the present appeals

will have to be considered.

35 24. The first point which was argued was that once a

review was conducted by the Screening Committee

of the High Court on 17.7.2000 on the appellants'

reaching the age of 50 years, which was accepted by

the Full Court, no second review on the same

material was permissible and the service record of

the appellants for compulsory retirement, could

have been reviewed only upon their reaching the age

of 55 years and not before reaching the said age.

What was maintained was that the Screening

Committee as well as the Full Court had considered

the entire service record of the appellants and found

that there was no material to recommend

compulsory retirement of any of them as a result of

which the previous record of each appellant before

July, 2000 could not have been again considered for

compulsory retirement. According to the learned

counsel for the appellants, the effect of decision of

the Full Court of the High Court dated July, 22,

2000 reflected in its resolution, passed on the

36

recommendation of the report of the Screening

Committee dated July 17, 2000, which was

submitted after considering the entire service

records and ACR Dossiers of each of the appellant,

not to retire any of them prematurely, was that

there was a bar to consider again the case of the

appellants for premature retirement and, therefore,

the order of compulsory retirement was liable to be

set aside. In support of this plea, reliance was

placed on the decision of this Court in State of U.P.

Vs. Chandra Mohan Nigam & Others (1977) 4

SCC 345.

25. In reply to the above mentioned argument, it was

pointed out by the learned Counsel for the High

Court that the decision of the Committee dated July

17, 2000 was purely tentative in nature and was not

a final decision. According to the learned counsel

for the High Court, the use of the expression "for

the time being" in the Minutes of the Committee

37

would show that it was not a final decision meaning

thereby the matters were to be considered in detail

on a later date and final decision was to be taken

later on. What was maintained was that the

decision of the Committee dated July 17, 2000 was

not a decision dealing each officer separately but

general in nature and, therefore the phrase "for the

time being" should be construed to mean that it was

not a final decision and the cases of the appellants

were deferred for being considered in future.

Elaborating this contention, it was submitted that

the Division Bench of the High Court has

considered the question as to whether it was

consideration on merits or a case of deferment and

rightly held that the exercise done in July 2000 was

not final and the cases of the appellants were

deferred. According to the learned counsel, the

High Court, in the impugned judgment, was

perfectly justified in holding that there was no

consideration on merits of the cases of the

38

appellants before 21.9.2001, and, therefore, the

orders passed in cases of the appellants retiring

them compulsorily from service were not bad in law.

Without prejudice to above mentioned contention, it

was argued that even if it was assumed for the sake

of argument that there was consideration of the

cases of the appellants in July, 2000, even then

there was no legal bar in again considering their

cases in next year particularly when it had come to

the notice of the High Court that their integrity was

doubtful. The learned counsel for the High Court

emphasized that in State of U.P. Vs. Chandra

Mohan Nigam and others (Supra) there was

consideration of cases of the respondents therein for

compulsory retirement at the age of 50 years and

next consideration could have been only at the age

of 55 years but in the said case an exception to this

rule is carved out, namely, if material in regard to

doubtful integrity of the officer comes to light, the

authority need not wait till the officer attains the

39

age of 55 years and action can be taken

immediately. Placing reliance on the decision of this

Court in Government of T.N. Vs. P.A. Manickam

(1996) 8 SCC 519, it was argued that the

consideration of an employee for compulsory

retirement at the age of 50 years is only the starting

point and not the end point, and, therefore, after 50

years at any time case of an officer can be

considered for compulsory retirement. The learned

counsel brought to the notice of this Court, the

observations made in Nawal Singh Vs. State of

U.P. and another (2003) 8 SCC 117 to the effect

that "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" and argued that it was always open to the

High Court to consider the case of the appellants at

any point of time though earlier a decision was

taken not to retire any of the appellants

compulsorily from service in the public interest.

40 According to the learned counsel for the High Court

the consideration of the cases of the appellants in

September, 2001 was in fact not a review of the

earlier decision taken by the Screening Committee

in July 2000 but it was a fresh consideration and

on review of record of service of the appellants the

High Court was justified in retiring the appellants

compulsorily from service. Placing reliance on the

decision in Haryana State Electricity Board Vs.

K.C. Gambhir (1997) 7 SCC 85, it was pointed out

that therein the case of the officer was considered at

the age of 50 years and he was permitted to

continue in service and again his case was

considered at the age of 55 years and he was

permitted to continue in service but he was

compulsorily retired at the age of 57 years and such

a decision was upheld by this Court by rejecting the

plea that his case could have been considered only

again at the age of 60 years.

41 26. This Court has considered the rival contentions

raised by the learned counsel for the parties on the

question whether the cases of the appellants for

compulsory retirement, could have been considered

again before they had reached the age of 55 years,

when the Screening Committee had already

considered their cases for compulsory retirement on

their attaining the age of 50 years on July 17, 2000,

and had not recommended their compulsory

retirement which recommendation was accepted by

the Full Court of the High Court.

27. In this connection it is relevant to notice certain

facts emerging from the record of the case. Rule 27

of the Delhi Higher Judicial Service Rules, 1970

provides that in respect of matters regarding the

conditions of service for which no provision or

insufficient provision has been made in those rules,

the rules, directions or orders for the time being in

force, and applicable to the officers of comparable

42

status in the Indian Administrative Service and

serving in connection with the affairs of the Union of

India, shall regulate the conditions of such service.

Thus Rule 16(3) of the All India Services (Death-

cum-Retirement Benefits) Rules, 1958 (`the Rules of

1958' for short) would be applicable to the officers of

the Delhi Higher Judicial Service. Clause (3) of Rule

16 of the Rules of 1958 was substituted in 1972

specifying the age of premature retirement to be 50.

Rule 16(3), after its substitution, reads as under: -

"16 (3) The Central Government may, in

consultation with the State Government

concerned and after giving a member of the

Service at least three months, previous notice

in writing, or three months pay and allowance

in lieu of such notice, require that member to

retire in public interest from service on the

date on which such member completes thirty

years of qualifying service or attains fifty years

of age or on any date thereafter to be specified

in the notice."

Therefore, the matter regarding pre-mature retirement of

officers of the Delhi Higher Judicial Service who have

completed 30 years of qualifying service or attained 50 years of

43

age, has to be reviewed in the light of Rule 16(3) of the Rules of

1958 quoted above.

28. Similarly, in case of officer of Delhi Judicial Service,

Rule 33 of Delhi Judicial Service Rules, 1970

provides that in respect of all such matters

regarding the conditions of service for which no

provision or insufficient provision has been made in

the Rules, the Rules or orders for the time being in

force, and applicable to Government servants

holding corresponding posts in connection with the

affairs of the Union of India, shall regulate the

conditions of such service.

29. In Delhi Judicial Service Rules, 1970, no provision

for compulsory retirement has been made.

Therefore, Fundamental Rule 56(j), which is, for the

time being in force and applicable to Government

servants holding corresponding posts envisaged

under the Delhi Judicial Service Rules, 1970, shall

regulate the matter of compulsory retirement of

44

officers of Delhi Judicial Service. Fundamental Rule

56(j), which is applicable to officers of Delhi Judicial

Service, reads as under:-

"(j) Notwithstanding anything contained in this

rule, the appropriate authority shall, if it is of

the opinion that it is in the public interest so

to do, have the absolute right to retire any

Government servant by giving him notice of

not less than three months in writing or three

months pay and allowances in lieu of such

notice:

(i) if he is in Group `A' or Group `B' service

or post in a substantive, quasi permanent

or temporary capacity and had entered

Government service before attaining the

age of 35 years, after he has attained the

age of 50 years;

(ii) in any other case after he has attained

the age of fifty-five years.

Provided that nothing in this clause shall

apply to a Government servant referred to in

clause (e), who entered Government service on

or before the 23rd July, 1966."

It would be seen that FR 56(j) gives absolute rights to the

appropriate authority to retire any government servant who

entered the service before attaining the age of 35 years, after

he has attained the age of 50 years.

45 30. The cases of the officers of Delhi Higher Judicial

Service and Delhi Judicial Service were laid before

the Screening Committee constituted by the

Administrative Committee vide its resolution dated

December 15, 1992 and also for laying down the

guidelines before reviewing the cases of direct

recruits. The Screening Committee decided as

under :-

"Government Rules be applied."

31. It may be stated that after reviewing the cases of the

officers of Delhi Higher Judicial Service and Delhi

Judicial Service upto 31.12.1994, the Full Court in

its meeting held on February 7, 1996 had taken the

following decision :-

"It was decided that for screening of the cases

of the officers of the Delhi Higher Judicial

Service and Delhi Judicial Services, now falling

within the zone of consideration for retirement

in public interest, a Screening Committee

consisting of Hon'ble Mr. Justice Jaspal Singh

and Hon'ble Mr. Justice J.K. Mehra be

constituted and the report of the Committee be

laid before the Full Court for consideration."

46

Consequent upon the retirement of Hon'ble Mr. Justice J.K.

Mehra, it was decided to reconstitute the composition of the

Screening Committee by Full Court in its meeting held on

January 17, 1998. The aforesaid reconstituted Screening

Committee reviewed the cases of several judicial officers in its

meeting held on July 17, 2000 and gave its report which reads

as under: -

"We have gone through the service record

including the ACR dossiers of the officers of

Delhi Higher Judicial Service and Delhi

Judicial Service who are within the zone of

consideration for being considered for

premature retirement in public interest at the

age of 50/55 years.

We do not find, for the time being, any officer

who can be retired prematurely in public

interest."

32. As ordered by the then Hon'ble the Chief Justice of

the Delhi High Court, the report of the Screening

Committee was to be laid before the Full Court for

consideration and orders.

47 33. In the meeting of the Full Court held on July 22,

2000 the report of the Screening Committee was

considered. The true copy of extracts from the

Minutes of the Meeting of the Full Court held on

Saturday, the July 22, 2000 at 11.00 A.M. in the

Judge Court reads as under :-

"Agenda : 6. To review the case of the officers

of DHJS and DJS who are within the zone of

consideration for being considered for

premature retirement in public interest -

Report dated 17.7.2000 of the Screening

Committee consisting of Hon'ble Mr. Justice

Arun Kumar and Hon'ble Mr. Justice S.K.

Mahajan constituted pursuant to Full Court

decision dated 17.01.1998.

Minutes : "The report of the Committee was

accepted."

34. On a fair reading of the report of the Screening

Committee quoted above read with the resolution

adopted by the Full Court in its meeting dated July

22, 2000, it becomes evident that the cases of the

appellants alone for premature retirement were not

considered but cases of all the officers of Delhi

Higher Judicial Service as well as that of officers

48

belonging to Delhi Judicial Service who were within

the zone of consideration for being considered for

premature retirement in public interest at the age of

50/55 years were also considered. The record of

the case would indicate that cases of number of

officers belonging to Delhi Higher Judicial Service

and Delhi Judicial Service were considered on one

day, and that too, in the Meeting of the Screening

Committee held on July 17, 2000. The record

indicates that case of each officer was not

considered individually. No reasons could be

recorded by the Screening Committee as to how

earlier entries adversely reflecting on the integrity of

the appellants, were dealt with or viewed. Under

the circumstances, the observation that "We do not

find, for the time being, any officer who can be

retired prematurely in public interest" will have to

be regarded as tentative and not final in nature.

When the Screening Committee stated that it did

not find for the time being any officer who could be

49

retired prematurely in public interest, it meant that

the cases of all the officers were deferred to be

considered in near future. It would be seen that FR

56(j) gives absolute right to the appropriate

authority to retire any Government servant who has

entered the service before attaining the age of 35

years, after he has attained the age of 50 years and

in other cases after he has attained the age of 55

years. There is no rule prohibiting consideration of

case of an officer for compulsory retirement before

he attains the age of 55 years, even if his case is

earlier considered at the age of 50 years. There is

nothing in the Delhi Judicial Service Rules or Delhi

Higher Judicial Service Rules or the Indian

Administrative Service Rules laying down a

prohibition that if the case of an officer for

compulsory retirement is considered at the age of

50 years, his case cannot be reconsidered till he

attains the age of 55 years. As held by this Court in

Government of T.N. (Supra), 50 years is only the

50

starting point and not the end point which means

that after 50 years at any time case of an officer can

be considered for compulsory retirement.

35. In State of U.P. Vs. Chandra Mohan Nigam and

Others (1977) 4 SCC 345, the facts were that the

respondent, i.e., Mr. Chandra Mohan Nigam was

recruited in the Indian Administrative Service in

Uttar Pradesh Cadre. He joined service on March

23, 1947. He was appointed as Judicial Member of

the Board of Revenue in 1969 and had attained the

age of 50 years on December 29, 1967. By an order

dated August 22, 1970 the President of India, in

consultation with the Government of Uttar Pradesh,

in pursuance of the power conferred by sub-rule (3)

of Rule 16 of the All India Services (Death-cum-

Retirement Benefits) Rules 1958 had passed the

order of compulsory retirement of the respondent in

the public interest on the expiry of three months

from the date of service of the order. That was

51

challenged by Mr. Chandra Mohan Nigam by a writ

petition before the Allahabad High Court. The

learned Single Judge had allowed the same on the

grounds of contravention of the justiciable and

binding rules and because the order was based on

consideration of irrelevant matters and was also

vitiated by bias.

Feeling aggrieved both the Union of India and the State of

U.P. had appealed to the Division Bench of the High Court.

The Division Bench of the High Court by an order dated April

13, 1973, dismissed both the appeals by a common judgment.

The Division Bench had not agreed with all the reasons given

by the learned Single Judge and had quashed the order of

compulsory retirement holding that the decision of the Central

Government to retire Mr. Nigam was passed on collateral facts

and was, therefore, invalid.

36. In appeals by certificates, this Court had noticed

the service career of the respondent. It was noticed

that the respondent during his service career, had

52

the following adverse entries in his character role -

(1) A warning was administered to him on December

6, 1953, for taking undue interest in the ejectment

of tenants from a house owned by him at Lucknow,

(2) another warning was issued to him on August

31, 1962, for having acquired a car from Varanasi

Corporation while working as the Administrator of

the said Corporation, (3) he was once warned for not

observing proper rules and procedure for utilizing

the fund earmarked for lower-income group housing

scheme towards the construction of a market (1956-

1957) and (4) he was placed under suspension in

1964 in connection with some strictures passed on

him by the Election Tribunal in a case relating to

the Gorakhpur Parliamentary Constituency

elections.

37. With regard to the last entry, he had filed appeal

before High Court and the strictures were expunged

upon which the order of suspension was set aside

53

and he was reinstated in service. However, the

aforesaid entry continued to be part of his character

roll at least till December 20, 1969. In pursuance of

sub-Rule (3) of Rule 16 and in consonance with the

certain instructions, the State Government of U.P.

in October 1969 had constituted a Review

Committee to review the records of the members of

the Service who were to attain or had attained the

age of 50 years. The list of officers considered by

this Committee had included the respondent Mr.

Nigam. The Committee had not recommended any

of the Officers including Mr. Nigam for premature

retirement and, on the other hand, had

recommended that they should be continued in

service. The State Government had accepted the

report of the Review Committee and communicated

its decision to the Central Government. On

December 20, 1969, the Secretary, Ministry of

Home affairs of the Central Government had

addressed a letter wherein a reference was made to

54

the adverse remarks in the character roll of Mr.

Nigam including suspension of Mr. Nigam which

was set aside on strictures being expunged by the

High Court, and a view was expressed that his was

a fit case in which proposal for his premature

retirement under Rule 16(3) of the All India Services

(Death-cum-Retirement Benefits) Rules, 1958

should have been considered. After noticing the

fact that the State Government had not

recommended the compulsory retirement the letter

proceeded to mention that the Central Government

was not knowing if there were any particular

reasons for taking a different view or whether it was

a case of over-sight. By the said letter the Central

Government had expressed opinion to have the

considered views of the State Government before

any decision was taken by the Central Government.

On January 29, 1970, the Chief Secretary to the

State Government had replied that the Review

Committee had considered the character roll and

55

the merits of the case of Mr. Nigam and found that

he was suitable for continuing in service, and that

the decision of the Committee was accepted by the

State Government. In the reply, it was mentioned

that the State Government's decision in the matter

was taken after thorough consideration and that the

State Government did not consider it necessary to

go into this question again. No adverse decision

contrary to the recommendation of the State

Government was taken and communicated by the

Central Government to the State Government in

pursuance of the recommendation of the first

Review Committee in October, 1969. However, the

State Government, on its own motion, constituted a

second Review Committee in May 1970. Again

before this Committee also the case of all the

officers who had attained the age of 50 years

including those whose cases had been reviewed

earlier in October 1969 was also placed for

consideration. Thus Mr. Nigam's case was

56

considered again by the Second Review Committee.

This time the Committee recommended that the two

officers one of whom was Mr. Nigam should be

prematurely retired. The State Government having

accepted this recommendation forwarded the same

to the Central Government. The Central

Government asked the State Government to send

the proceeding of the Review Committee and on

receipt of the proceedings, the Central Government

agreed with the views of the State Government and

passed the order of compulsory retirement of Mr.

Nigam.

38. It is in the light of these facts that this Court made

following observations in paragraph 29 of the

reported decision which read as under :

"29. The correct position that emerges from Rule

16(3) read with the procedural instructions is that

the Central Government, after consultation with the

State Government, may prematurely retire a civil

servant with three months' previous notice prior to

his attaining 50 years or 55 years, as the case may

be. The only exception is of those cases which had

to be examined for the first time after amendment of

57

the rule substituting 50 years for 55 years where

even officers, who had crossed the age of 50 years,

even before reaching 55, could be for the first time

reviewed. Once a review has taken place and no

decision to retire on that review has been ordered by

the Central Government, the officer gets a lease in

the case of 50 years upto the next barrier at 55 and,

if he is again cleared at that point, he is free and

untrammelled upto 58 which is his usual span of

the service career. This is the normal rule subject

always to exceptional circumstances such as

disclosure of fresh objectionable grounds with

regard to integrity or some other reasonably weighty

reason."

39. So far as present case is concerned, no final

decision was taken by the Screening Committee in

case of any officer of Delhi Higher Judicial Service

and Delhi Judicial Service, but a tentative decision

was taken that at that stage no officer was found fit

who could have been retired compulsorily from

service. This is not a case wherein a review had

taken place and a positive final decision to continue

the appellants in service, was taken by the

Screening Committee. In the case of Chandra

Mohan Nigam (Supra), the case of Mr. Nigam was

considered positively for retirement but a specific

58

recommendation was made to continue him in

service, by the Review Committee which was

accepted by the State Government and except

expressing an opinion that having regard to certain

adverse remarks in his character roll, this was a fit

case in which proposal for his premature retirement

should have been considered, the Central

Government, after receipt of reply from the State

Government, had not taken any adverse decision

contrary to the recommendation of the State

Government, which was in turn based on the

recommendation of the First Review Committee.

Further, in Chandra Mohan Nigam's case itself this

Court has in para 27 of the reported decision

hastened to add that when integrity of an officer is

in question, that will be an exceptional

circumstance for which order may be passed in

respect of such an officer under Rule 16(3), at any

time, if other conditions of that rule are fulfilled

apart from the choice of disciplinary action which

59

will also be open to the Government. Thus an

exception to the rule, that if there is consideration

at the age of 50, next consideration can be only at

the age of 55 is made in Chandra Mohan Nigam's

case itself by holding that if material in regard to

doubtful integrity of the officer comes to light, the

authority need not wait till the officer attains the

age of 55 years and action can be taken

immediately. The integrity of all the three Judicial

Officers was found to be doubtful and, therefore,

their compulsory retirement from service cannot be

held to be illegal.

40. At this stage, a reference may be made to the

decision of this Court in Haryana State Electricity

Board vs. K.C. Gambhir (1997) 7 SCC 85. Though

the decision may not be strictly applicable to the

facts of the present cases, but certain observations

made therein are relevant to understand the issue

60

posed for consideration of this Court in the present

appeals.

The respondent therein was an employee of Haryana

State Electricity Board. He was promoted as Executive

Engineer on February 19, 1977. When he attained the age of

50 years, his case for compulsory retirement was reviewed on

November 30, 1986. His integrity was reported doubtful in the

year 1985-86, yet it was decided not to retire him compulsorily

because his representation against adverse remarks was

pending. On attaining 55 years of age, his case for

compulsory retirement was again reviewed on November 30,

1991. AT that time also, departmental proceedings were

pending against him for a serious act of misconduct and,

therefore, it was decided not to retire him. The enquiry was

over on August 4, 1993 and thereafter, he was compulsorily

retired on February 3, 1994 by giving him three months'

notice. The retirement came nine months before his date of

superannuation. Thus, on two earlier occasions, it was

decided not to retire him compulsorily, but on third occasion,

61

order of compulsory retirement was passed. The order of

compulsory retirement was set aside by the High Court of

Punjab and Haryana in the writ petition filed by the

respondent. This Court, while allowing the appeal filed by the

Haryana State Electricity Board, observed that though the

appellant could have taken the action of compulsorily retiring

the respondent from service earlier, it acted very fairly and

allowed him to remain in service till his representation against

the adverse remarks was considered on the first occasion and

subsequently, till the departmental enquiry was completed.

The clear meaning of the above-mentioned observation is that

even during the pendency of his representation against

adverse remarks and during the pendency of departmental

enquiry, Haryana State Electricity Board could have taken

action of compulsorily retiring the respondent from service

earlier. Thus on the basis of service record, the three Judicial

Officers could have been retired compulsorily from service but

a tentative decision was taken not to retire them from service

at that point of time. But this tentative decision would not

preclude the authority concerned from passing orders of

62

compulsory retirement later on.

41. In Government of T.N. vs. P.A. Manickam AIR

1996 SC 2250, what is ruled by this Court is that

the rule permits the appropriate authority to retire

any Government servant after he has attained the

age of 50 years or after he has completed 25 years

of qualifying service and the rule prescribes a

starting point, which is the attaining of the age of

50 years or the completion of 25 years of service,

but it does not prescribe a terminus ad quam and it

is, therefore, open to the appropriate authority

under the rule to consider the case of a Government

servant for premature retirement at any time after

the aforementioned starting points. Thus, after the

so-called review of the cases of the two appellants

and the deceased officer in July, 2000, their cases

were rightly reviewed again and orders retiring them

compulsorily from service were rightly passed

against them.

63 42. In Union of India Vs. M.E. Reddy (1980) 2 SCC

15, the respondent Mr. Reddy started his career in

the Police Service as Deputy Superintendent of

Police in the year 1948. In the year 1958 he was

appointed to the Indian Police Service. On July 31,

1958, he was promoted as Superintendent of Police

in State of Andhra Pradesh and held charge of a

number of Districts from time to time. He was

awarded the President Police Medal on August 14,

1967 but the award of the said medal was withheld

as he was placed under suspension by the

Government on August 11, 1967 pending

departmental enquiry into a number of allegations

made against him.

In 1969, he filed a writ petition in the Andhra Pradesh

High Court praying that the order of suspension passed

against him be quashed as it was passed on false allegations

and at the instance of Mr. K. Brahmanand Reddy who was

then Chief Minister of the State. The writ petition was

64

admitted by the High Court and an interim order staying all

further proceedings in departmental enquiry was passed.

When the writ came up for hearing, the State Government

represented to the High Court that, it had decided to withdraw

order of suspension and reinstate Mr. Reddy. The State

Government withdrew the order of suspension and directed

that the period of suspension be treated as on duty.

Thereafter, on application being filed by Mr. Reddy, the writ

petition was dismissed as withdrawn. Because of these

developments the departmental proceedings against him were

dropped and he was given Selection Grade, which was

withheld because of the suspension order. By an order dated

April 28, 1971, he was promoted to the rank of Deputy

Inspector General of Police. During the course of the

departmental enquiry an entry to the effect that "he had

concocted a case of attempt to rape against one Mr. Venugopal

Reddy to please the then Inspector General of Police Mr.

Nambiar and there was a strong suspicion about his integrity"

was made in his A.C.R. He made a representation to expunge

the entry. The Government decided that as statements were

65

factual, it would be sufficient if entry was made to the effect

that the suspension was subsequently lifted and the period

was treated as on duty and that further action was not

necessary as there were no good grounds to hold him guity of

any of the charges leveled against him.

However, on August 7, 1975, a Review Committee

consisting of the Chief Secretary, Home Secretary and

Inspector General of Police considered various cases of police

officers including that of Mr. Reddy and made

recommendations. On September 11, 1975, the Government

of India, after considering report of the Review Committee,

ordered compulsory retirement of Mr. Reddy in public interest.

Thereupon Mr. Reddy filed writ petition in the Andhra

Pradesh High Court. The Single Judge allowed the petition

and quashed order of compulsory retirement. That decision

was upheld by the Division Bench of the High Court, in appeal

filed by State of Andhra Pradesh and Union of India.

Therefore, the two appeals by certificate were filed before this

Court.

66

It was argued before this Court on behalf of Mr. Reddy

that the order impugned was passed on materials which were

not existent inasmuch as there were no adverse remarks

against Mr. Reddy who had a spotless career throughout and

if such remarks had been made in his confidential reports,

they would have been communicated to him under the rules.

This contention was negatived in following terms: -

"Here we might mention that the appellants were

fair and candid enough to place the entire

confidential personal file of Reddy before us starting

from the date he joined the Police Service and after

perusing the same we are unable to agree with Mr.

Krishnamurty Iyer that the officer had a spotless

career. The assessment made by his superior

officers from the very beginning of his service until

the impugned order was passed show that at the

best Reddy was merely an average officer and that

the reports show that he was found to be sometimes

tactless, impolite, impersonated, suffered from other

infirmities, though not all of them were of a very

serious nature so as to amount to an adverse entry

which may be communicated to him. We might also

mention that before passing an order under Rule

16(3) it is not an entry here or an entry there which

has to be taken into consideration by the

Government but the overall picture of the officer

during the long years of his service that he puts in

has to be considered from the point of view of

achieving higher standard of efficiency and

dedication so as to be retained even after the officer

has put in the requisite number of years of service.

67

Even in the last entry which was sought to be

expunged through a representation made by Reddy

and other entries made before that it appears that

the integrity of Reddy was not above board."

While allowing the appeals of the Union of India and State of

Andhra Pradesh, this Court has emphasized the importance of

adverse entry. After referring to observations made by this

Court in para 27 of the decision in the case of Sate of U.P. vs.

Chandra Mohan Nigam (1977) 4 SCC 345, wherein the Court

had hastened to add that when integrity of an officer is in

question that will be an exceptional circumstance for which

order may be passed in respect of such a person under Rule

16(3) at any time, if other conditions of the rule are fulfilled,

apart from the choice of disciplinary action which will also be

open to Government, this Court M.E. Reddy's case, has held

as under: -

"Thus, even according to the decision rendered by

this Court in the aforesaid case the fact that an

officer is of doubtful integrity stands on a separate

footing and if he is compulsorily retired that neither

involves any stigma nor any error in the order."

68

Further, in the process of interpreting the decision in Chandra

Mohan Nigam's case, this Court in para 25 of the reported

decision inter-alia observed that "we have already indicated

above that this Court made it absolutely clear that when a

person was retired under Rule 16(3) on the ground that his

integrity was in question, the observations made by this Court

would have no application."

43. Apart from the poor judicial performance, the

appellants were also retired compulsorily from

service, on the ground that their integrity was

doubtful.

44. The mandate of Article 235 of the Constitution is

that the High Court has to maintain constant vigil

on its subordinate judiciary as laid down by this

Court in High Court of Judicature at Bombay

through its Registrars Vs. Shirishkumar Rangrao

Patil and Another (1997) 6 SCC 339. In the said

case, this Court has explained that the lymph nodes

(cancerous cells) of corruption constantly keep

69

creeping into the vital veins of the judiciary and

need to stem it out by judicial surgery lies on the

judiciary itself by its self- imposed or corrective

measures or disciplinary action under the doctrine

of control enshrined in Articles 235, 124(6) of the

Constitution, and therefore, it would be necessary

that there should be constant vigil by the High

Court concerned on its subordinate judiciary and

self introspection.

45. Judicial service is not a service in the sense of an

employment as is commonly understood. Judges

are discharging their functions while exercising the

sovereign judicial power of the State. Their honesty

and integrity is expected to be beyond doubt. It

should be reflected in their overall reputation.

There is no manner of doubt that 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. As explained

70

by this Court in Chandra Singh and others Vs.

State of Rajasthan & another (2003) 6 SCC 545,

the power of compulsory retirement can be

exercised at any time and that the power under

Article 235 in this regard is not in any manner

circumscribed by any rule or order. What is

explained in the said decision by this Court is that

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, and this

constitutional power of the High Court cannot be

circumscribed by any rule or order. Moreover while

upholding the orders of compulsory retirement of

judicial officers who were working in the State of

U.P., following weighty observations have been

made by this Court in para 13 of decision in case of

Nawal Singh vs. State of U.P. and another (2003)

8 SCC 117: -

71 "13. It is to be reiterated that for keeping the

stream of justice unpolluted, repeated scrutiny of

service records of judicial officers after a specified

age/completion of specified years of service provided

under the Rules is a must by each and every High

Court as 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."

46. Under the circumstances this Court is of the firm

opinion that the principle laid down in Chandra

Mohan Nigam's case will not be applicable to the

facts of the appellants who were Members of the

Delhi Higher Judicial Service.

47. Even if it is assumed for the sake of argument that

the principle laid down in Chandra Mohan Nigam's

case would apply with all the vigour to the facts of

the appellants also, this Court finds that in respect

of all the three officers, after the previous

consideration in July, 2000, new material in the

form of ACR for the year 2000 "`C' integrity

doubtful" had come into existence and had become

72

a part of their respective service records when the

Full Court in its meeting held on 13.9.2001

recorded their ACRs for the year 2000. Thus the

consideration by the Committee constituted for the

purpose of evaluating the cases of the officers to

ascertain whether they should be compulsorily

retired, was subsequent in point of time, namely, on

21.09.2001 and as such it will be fully covered by

the exception spelt out in Chandra Mohan Nigam's

Case itself in regard to consideration of cases again

before the age of 55 years. The consideration of the

cases of the three judicial officers on the basis of

ACRs dated September 13, 2001 recorded by the

Full Court of the Delhi High Court is not a review of

the earlier decision of July, 2000. It is a fresh

consideration. It is review of the record of service of

the officers and not review of the earlier decision

and such review is not only permissible but is

perfectly legal and valid.

73 48. The net result of the above discussion is that this

Court does not find any substance in the first

contention raised on behalf of the appellants and

the same is hereby rejected.

49. The next contention which was raised by the

learned counsel for the appellants was that the

order passed by the Lt. Governor compulsorily

retiring the appellants from service, without seeking

aid and advice of his Council of Ministers, as

required by Article 239(AA)(4) of the Constitution is

ultra vires as well as illegal and therefore, the same

should not be sustained. Elaborating the said

point, it was argued that the order retiring the

appellants compulsorily from service was passed by

the Lt. Governor on receiving the recommendation

of the High Court of Delhi, pursuant to the

resolution of the Full Court passed on September

22, 2001 acting under and in exercise of control

over subordinate judiciary under Article 235 of the

74

Constitution, but the powers of the Lt. Governor of

N.C.T. of Delhi under Article 239(AA)(4) which are

analogous to powers of a Governor under Article

163(1) of the Constitution can be exercised only on

aid and advice of his Council of Ministers, and

therefore, the order passed by the Lt. Governor

retiring the appellants compulsorily from service are

bad in law. In support of these submissions the

learned counsel for the appellants placed reliance

on: (a) Samsher Singh Vs. State of Punjab and

Another, (1974) 2 SCC 831 = AIR 1974 SC 2192

and (b) M.M.Gupta and Others Vs. State of

Jammu & Kashmir and Others, (1982) 3 SCC

412.

50. The learned counsel for the respondent High Court

pleaded that the contention that Lt. Governor while passing

the Order of compulsory retirement ought to have been

advised by his Council of Ministers was not advanced before

the High Court and therefore was not considered by the High

75

Court and this plea should not be permitted to be raised for

the first time in the appeals arising by grant of special leave.

It was pointed out that in the appeal arising out of SLP No.

314 of 2009 in the list of dates filed by Mr. P.D. Gupta it was

pleaded that this plea was urged before the High Court but the

same was not considered before the High Court and if that be

so the remedy of the appellant is to go back to the High Court

and file the review petition. What was emphasized was that

Mr. Gupta had in fact filed a review petition but later on

withdrawn the same without seeking any liberty to agitate this

point in the Special Leave Petition or in any other proceedings

and therefore, he is not entitled to urge this plea. It was

emphatically pointed out by the learned counsel for the High

Court that in other appeals, it is not stated by the appellants

that such a plea was urged before the High Court and they

having not urged such a plea in the memorandum of Special

Leave Petitions, the plea raised at the delayed and belated

stage should not be considered by this Court. In support of

this argument, the learned counsel for the respondent relied

upon decisions in (a) Daman Singh and Others Vs. State

76

of Punjab and Others, (1985) 2 SCC 670, (b) State of Punjab

and Another Vs. H.B. Malhotra, (2006) 11 SCC 169, (c)

Mohd. Akram Ansari Vs. Chief Election Officer and Others,

(2008) 2 SCC 95 and (d) Ex-Constable Ramvir Singh Vs.

Union of India and Others, (2009) 3 SCC 97.

51. Without prejudice to the above stated contention, it was

argued by the learned counsel for the respondent that under

Article 235, it is High Court which has to exercise supervision

and control over the subordinate judiciary and not the State

Government and therefore, recommendations of the High

Court in regard to compulsory retirement were/are binding on

the State Government/the Governor. The learned counsel

pleaded that the Lt. Governor has to act on the

recommendation of the High Court and there is no illegality, if

the Governor on the recommendations of the High Court had

passed order retiring the appellants compulsorily from service.

To buttress this submission, the learned counsel for the

respondent placed reliance on (a) Samsher Singh Vs. State of

Punjab and Another, (1974) 2 SCC 831 = AIR 1974 SC

77

2192, (b) State of Haryana Vs. Inder Prakash Anand H.C.S.

& Others, (1976) 2 SCC 977, (c) Baldev Raj Guliani Vs. The

Punjab and Haryana High Court & Others, (1976) 4 SCC

201, (d) Registrar, High Court of Madras Vs. R. Rajaiah,

(1988) 3 SCC 211, (e) Registrar (Admn.), High Court of

Orissa, Cuttack Vs. Sisir Kanta Satapathy (Dead) by LRs. &

Another, (1999) 7 SCC 725, (f) Tej Pal Singh Vs. State of

U.P. & Another, (1986) 3 SCC 604 and (g) T. Lakshmi

Narasimha Chari Vs. High Court of A.P. and Another,

(1996) 5 SCC 90.

This Court has heard the learned counsel for the parties

at great length on the question whether the order passed by

the Lt. Governor compulsorily retiring the appellants from

service without seeking aid and advice of his Council of

Ministers as required under Article 239 (AA)(4) of the

Constitution is ultravires and illegal.

52.It is true that the appellant Mr. Gupta has stated in the

Memorandum of Special Leave Petition that the point that

Lt. Governor could not have passed order retiring him

78

compulsorily from service on the recommendation of the

High Court and without seeking aid and advice of his

Council of Ministers, was urged before the High Court, but

the said point was not considered by the High Court. It is

rightly argued by the learned counsel for the respondent

that even in such an eventuality, the only course/remedy

available to the said appellant was to approach the High

Court seeking review of the Judgment. The record shows

that the appellant Mr. Gupta had filed review application

before the High Court, but the same was unconditionally

withdrawn. At the time of withdrawal of review application,

the appellant had not sought any liberty to agitate this

point in Special Leave Petition before this Court. So far as

two other appellants are concerned they have not stated

that such a point was argued on their behalf before the

High Court and was not dealt with by the High Court.

Under the circumstances a question arises whether the

learned counsel for the appellants should be permitted to

raise such a plea before this Court at the stage of final

disposal of the matters.

79 53.Ordinarily the Supreme Court would not entertain a new

prayer at the hearing of the appeal under Article 136 when

it is not raised in the High Court or in the petition seeking

leave to appeal. Point not raised before the High Court but

taken in Special Leave Petition will not ordinarily be

allowed to be agitated before this Court. The consistent

practice of this Court is that the Court does not permit a

party to raise a new point which has not been argued

before the High Court. However, there are exceptional

cases in which this Court may permit a party to raise a new

plea before this Court for the first time, for example, where

the plea raised does not require investigation of new facts

or where the question raised is a pure question of law or

where the point is likely to be raised in future affecting

such cases or where the respondent has dealt with the

point raised for the first time, in the reply filed before this

Court and the learned counsel for the parties are heard at

length and in great detail. This Court having gone through

the decisions relied upon by the learned counsel for the

respondent, finds that no absolute proposition of law is laid

80

down in any of the decisions that in no circumstances a

new plea can ever be permitted to be raised before this

Court if the same was not raised before the High Court.

The question sought to be raised is a pure question of law

for which factual foundation is already laid. The learned

counsel for the parties have been heard at great length on

the new point sought to be raised first time before this

Court. The authorities cited at the Bar have been read and

re-read to emphasize respective view points. Therefore,

having regard to the facts of the case, this Court has

permitted the learned counsel for the appellants to raise

the point and heard the learned counsel for the parties in

detail.

54.In order to answer the question posed for the consideration

of the Court, it will be useful to notice the contents of

Articles 163(1) and 239(AA) (4) of the Constitution.

55.Article 163 makes provision that Council of Ministers has

to aid and advice Governor. It inter alia provides that there

shall be a Council of Ministers with the Chief Minister as

81

the head to aid and advise the Governor in the exercise of

his functions, except in so far as he is by or under the

Constitution required to exercise his functions or any of

them in his discretion. The said Article further provides

that if any question arises whether any matter is or is not a

matter in respect of which the Governor is by or under this

Constitution required to act in his discretion, the decision

of the Governor in his discretion shall be final, and the

validity of anything done by the Governor shall not be

called in question on the ground that he ought or ought not

to have acted in his discretion. Sub Article (3) of Article

163 stipulates that the question whether any, and if so

what, advice was tendered by Ministers to the Governor

shall not be inquired into in any Court.

56.Article 239AA inserted by the Constitution (Sixty-ninth

Amendment) Act, 1991 enacts special provisions with

respect to Delhi. Clause (1) of said Article states that as

from the date of commencement of the Constitution (Sixty-

ninth Amendment) Act, 1991 which is February 1, 1992

82

the Union Territory of Delhi shall be called the National

Capital Territory of the Delhi and the administrator thereof

appointed under Article 239 shall be designated as the

Lieutenant Governor. Sub-clause (2) deals with the

constitution of Legislative Assembly for the National Capital

Territory and total number of seats of the assembly etc.

Sub-clause (3) of the Article confers power on the

Legislative Assembly to make laws for the whole or any part

of the National Capital Territory. Sub-clause (4) with which

the court is concerned, inter alia provides that there shall

be a Council of Ministers consisting of not more than ten

per cent of the total number of members in the Legislative

Assembly, with the Chief Minister at the head to aid and

advise the Lieutenant Governor in the exercise of his

functions in relation to matters with respect to which the

Legislative Assembly has power to make laws, except in so

far as he is, by or under any law, required to act in his

discretion.

83 57. A meaningful and conjoint reading of Article 163 of the

Constitution makes it clear that the Governor has to act on

aid and advice of the Council of Ministers with the Chief

Ministers as the head except in so far as he is by or under

this Constitution required to exercise his functions or any

of them in his discretion. In view of the provisions of sub

Article (4) of Article 239AA of the Constitution, the Lt.

Governor has to take aid and advice of the Council of

Ministers in the exercise of his functions in relation to

matters with respect to which the Legislative Assembly has

power to make laws. Article 235 provides that the control

over the subordinate courts is vested in High Court of a

State. The expression "control" has been elucidated in

several reported decisions of this Court, the leading case

being Shamsher vs. State of Punjab (1974) 2 SCC 831.

The "control" vested in the High Court is a mechanism to

ensure independence of the subordinate judiciary. Under

Article 235 of the Constitution, the control over the

subordinate judiciary, vested in the High Court, is

exclusive in nature, comprehensive in extent and effective

84

in operation and it is to subserve a basic feature of the

Constitution, i.e., independence of judiciary. Among others

things, it includes - (a) (i) disciplinary jurisdiction and a

complete control subject only to the power of Governor in

the matter of appointment, dismissal, removal and

reduction in rank of District Judges and initial posting and

promotion to the cadre of District Judges, (ii) in Article 235

the word `Control' is accompanied by the word `vest' which

shows that the High Court alone is made the sole custodian

of the control over the judiciary, and (iii) Suspension from

service of a member of judiciary with a view to hold

disciplinary enquiry; (b) transfers, promotion and

confirmation of such promotions, of persons holding posts

in judicial service, inferior to that of District Judge; (c)

transfer of District Judges; (d) recall of District Judges

posted on ex-cadre posts or on deputation on

administrative posts; (e) award of selection grade to the

members of the judicial service, including District Judges

and grant of further promotion after their initial

appointment to the cadre; (f) confirmation of the District

85

Judges who have been on probation or are officiating after

their initial appointment or promotion by the Governor to

the cadre of District Judges under Article 233; and (g)

premature or compulsory retirement of Judges of the

District Courts and of Subordinate Courts.

58.The scheme envisaged by the Constitution does not permit

the State to encroach upon the area reserved by Articles

233, 234 and first part of Article 235 either by legislation or

rules or executive instructions.

59.Article 235 has no concern with the conferring of

jurisdiction and powers on the Court but it only relates to

administrative and disciplinary jurisdiction over the

subordinate Courts. Therefore, the conferment of power of

the prescribed authority by the State Legislature on the

Judicial Officers cannot be construed to mean that the

power of the High Court under Article 235 is inoperative or

inchoate as High Court alone is the sole authority

competent to initiate disciplinary proceedings against

Subordinate Judicial Officers or to impose various

86

punishments including passing of order of compulsory

retirement on verification of the service record. The State

is least competent to aid and advise Governor on such

subjects. While the High Court retains the power of

disciplinary control over the subordinate judiciary

including power to initiate disciplinary proceedings,

suspend them during enquiries and impose punishment on

them, but when it comes to the question of dismissal,

removal or reduction in rank or termination of services of

judicial officers on any count whatsoever, the High Court

becomes the recommending authority and cannot itself

pass the orders. The formal order to give effect to such a

decision has to be passed by the State Governor on the

recommendations of the High Court. In disciplinary

proceedings if an action is taken by the High Court against

the judicial officer the recommendations made by the High

Court bind the Governor and he is left with no discretion

except to act according to the recommendations. The

Governor, under the scheme of Articles 233, 234 and 235

of the Constitution cannot refuse to act in terms of the

87

recommendations made by the High Court on the ground

that he is not aided and advised by the Council of Ministers

and this is the true import of total control of the High Court

over the Subordinate Judiciary.

60.In the light of the above mentioned principles the decisions

sited at the bar will have to be considered.

61. In Shamsher Singh (Supra), there were two appellants,

namely, Shamsher Singh and Ishwar Chand Agarwal. The

two appellants were members of the Punjab Civil Services

(Judicial Branch) and were appointed on probation. The

services of appellant Shamsher Singh were terminated by

an order dated April 27, 1967, by the Governor of Punjab

under Rule 9 of the Punjab Civil Services (Punishment and

Appeal) Rules, 1952, with immediate effect. By an order

dated December 15, 1969, the services of the appellant

Ishwar Chand Agarwal were terminated under Rule 7(3) in

Part `D' of the Punjab Civil Services (Judicial Branch)

Rules, 1951, by the Governor of Punjab, on the

recommendation of the High Court of Punjab and Haryana.

88 Both of them had filed writ petitions in the Punjab and

Haryana High Court against the termination of their

services. The writ petitions were dismissed and, thereafter,

they had filed appeals to the Supreme Court.

62.The first contention raised by appellant Ishwar Chand

Agarwal that he completed his initial period of probation of

two years on November 11, 1968 and by reason of the fact

that he continued in service after the maximum period of

probation, he became confirmed by necessary implication,

was negatived by this Court on the ground that notice

dated October 4, 1968 was given at the end of the

probation and the period of probation got extended till the

inquiry proceedings commenced by the notice under Rule 9

came to an end.

63.The second contention on behalf of Ishwar Chand Agarwal

that termination of his service was by way of punishment

on the basis of charges of gross misconduct by ex-parte

enquiry conducted by the Vigilance Department found

favour with this Court.

89 64.This Court accepted the plea that the termination of his

services was based on the findings of misconduct contained

in about eight complaints, which were never communicated

to him and High Court had abdicated the control vested in

it under Article 235 by not having an enquiry through

judicial officers subordinate to the control of the High

Court, but asking the Government to enquire through the

Vigilance Department.

65.The abdication of the control over the subordinate judiciary

by the High Court under Article 235 in favour of the

Government and the stand of the State that the High Court

wanted the Government to be satisfied about the suitability

of Mr. Agarwal was found to be something obnoxious and

had annoyed and shocked this Court. Therefore, this

Court, without mincing the words, authoritatively, clearly

and for future guidance of one and all, expressed itself in

the following strong words in para 78 of the reported

decision.

90 "78. The High Court for reasons which are not

stated requested the Government to depute the

Director of Vigilance to hold an enquiry. It is indeed

strange that the High Court which had control over

the subordinate judiciary asked the Government to

hold an enquiry through the Vigilance Department.

The members of the subordinate judiciary are not

only under the control of the High Court but are

also under the care and custody of the High Court.

The High Court failed to discharge the duty of

preserving its control. The request by the High

Court to have the enquiry through the Director of

Vigilance was an act of self abnegation. The

contention of the State that the High Court wanted

the Government to be satisfied makes matters

worse. The Governor will act on the

recommendation of the High Court. That is the

broad basis of Article 235. The High Court should

have conducted the enquiry preferably through

District Judges. The members of the subordinate

judiciary look up to the High Court not only for

discipline but also for dignity. The High Court acted

in total disregard of Article 235 by asking the

Government to enquire through the Director of

Vigilance."

Having laid down, abovementioned proposition of law,

this Court deprecated the abdication of control by the High

Court by observing that the High Court denied itself the

dignified control over the Subordinate Judiciary and after

holding that the order of termination of the services of Ishwar

91

Chand Agarwal was clearly by way of punishment, set aside

the same.

66. In view of what is categorically, clearly and authoritatively

held in paragraph 78 of the reported decision there is no

manner of doubt that it is ruled by Seven Judge Bench of

this Court in case of Shamsher Singh (supra), that the

Governor has to act on the recommendation of the High

Court and that is the broad basis of Article 235.

The appellant Shamsher Singh was appointed on May 1,

1964 as Subordinate Judge. He was on probation. On March

22, 1967, the Chief Secretary issued a notice to him

substantially repeating the same charges which had been

communicated to him by the Registrar on December 15, 1966,

and asked the appellant to show cause as to why his services

should not be terminated as he was found unsuitable for the

job. The appellant gave an answer. On April 29, 1967, the

services of the appellant were terminated.

Shamsher Singh, in the context of the Rules of Business,

contended that the removal of a Subordinate Judge from

92

service was a personal power of the Governor and was

incapable of being delegated or dealt with under the Rules of

Business.

This Court held that the Governor can allocate the

business of the Government to the Ministers and such

allocation is no delegation and it is an exercise of executive

power by the Governor through the Council or officers under

the Rules of Business. Therefore, the contention of the

appellant that the order was passed by the Chief Minister

without the formal approval of the Governor was found to be

untenable and it was held that the order was of the Governor.

Thereafter, this Court noted the contents of the show-

cause notice, reply given to the said notice by the appellant,

protection granted by Rule 9, etc. and held that it was clear

that the order of termination of services of Shamsher Singh

was one of punishment and set it aside.

In the light of the contention raised on behalf of

Shamsher Singh in the context of the Rules of Business, this

Court, in para 88 of the said decision, held that the President

93

and the Governor act on the aid and advice of Council of

Ministers in executive action and the appointment as well as

removal of the members of the Subordinate Judicial Service is

an executive action of the Governor to be exercised on the aid

and advice of the Council of Ministers in accordance with the

provisions of the Constitution.

67. Thus what is observed by the Supreme Court, in para 88 of

the reported decision, will have to be read in the light of the

submission made on behalf of the appellant Shamsher

Singh and subject to clear, unambiguous and manifest

proposition of law laid down in para 78 of the reported

decision. Therefore, it is wrong to contend that in

Shamsher Singh's case (supra), it is ruled by this Court

that the Governor is bound to act as per the aid and advice

tendered by the Council of Ministers and not on the

recommendations of the High Court in the matter of

termination of services of the judicial officers on any count

whatsoever.

94 68. In another decision relied upon by the learned counsel for

the appellants, i.e., in M.M. Gupta and Others (Supra),

this Court held that in the appointment of Judicial Officers

or removal of Judicial Officer by the Government, there has

to be effective consultation between the Government and

the High Court. This decision basically interprets Section

109 of the Constitution of Jammu and Kashmir. In the

State of Jammu and Kashmir certain vacancies for the post

of District and Sessions Judge occurred for being filled up

out of the eligible Judicial Officers. The High Court at a

meeting of all the Judges considered the merits and

suitability of all the eligible candidates and by a resolution

recommended to the Government the name of some officers

in supersession of others. The Government then called for

a copy of the High Court's resolution and Annual

Confidential Reports of the candidates. In response, the

high Court sent its detailed comments justifying its

recommendation as also reasons for the supersession of

seniors along with the resolution and confidential reports

as desired by the Government. Thereafter, a Cabinet sub-

95 committee considered the matter. But the government

neither communicated the recommendation of the

Committee to the High Court, nor sought the High Court's

views thereon and thereafter without any further intimation

or discussions made the appointments in accordance with

seniority. Those officers whose names were recommended

by the High Court filed a writ petition under Article 226

challenging validity of the appointments. The Court

granted a stay of operation of the appointment order

pending disposal of the matter regarding admissibility of

the petition. But ultimately in view of the agreement

between the parties, the High Court declined to hear the

petition on the ground of judicial propriety and vacated the

order of stay and granted a certificate of fitness to the

petitioners to file an appeal in the Supreme Court, holding

that the point involved in the writ petition relating to the

interpretation of Section 109 of the Constitution of Jammu

and Kashmir, raised a substantial question of law of

general public importance and the case was a fit one in

which a certificate of fitness should be granted. Against

96

this order the State filed a special leave to appeal in this

Court. The petitioners also filed a writ petition under

Article 32 substantially for the same reliefs claimed in their

earlier writ petition under Article 226. Allowing the

aggrieved officers appeal with costs against the State

Government, this Court held that the power to make

appointment of District Judges vested in the Governor is

conditioned by the mandatory duty on the part of the

Governor to consult the High Court, and the High Court

has to decide whether a person is fit for promotion and

make recommendations accordingly. This Court further

held that the consultation has to be made with the High

Court alone and not with any other authority, because the

High Court by virtue of its control over the officers must be

considered to be the best judge of the ability and suitability

of any officer as it has in its possession all the relevant

materials regarding the performance of the officers.

Therefore, this Court in the said case ruled that it should

generally be left to the High Court to decide as to which of

the officers will best serve the requirements in furtherance

97

of the cause of justice. In this decision in no uncertain

terms this Court after considering previous judgments on

the point held that the High Court should judge the

suitability for promotion in a detached manner taking into

consideration all material facts and relevant factors and

normally, as a matter of rule, the recommendations made

by the High Court should be accepted by the State

Government and the Governor should act on the same. If

the decision is construed in a pragmatic manner there is no

manner of doubt that this decision also takes a view that

Governor has to act on the recommendations made by the

High Court. Ultimately, this Court found that the

appointments of respondent Nos. 3, 4, 5, 6 therein made by

the State Government were in violation of the

Constitutional provisions and were therefore, set aside.

69. In State of Haryana Vs. Inder Prakash Anand H.C.S. and

Others (Supra), the respondent joined the Punjab Civil

Service, (Executive Branch) in November, 1954. He was

selected for the Judicial Branch of the Punjab Civil Service

98

on May 1, 1965. On November 15, 1968 he was promoted

as officiating Additional District and Sessions Judge. He

was due to attain the age of 55 years on February 24,

1971. The State referred his case to the High Court for its

recommendation whether he should be retired at the age of

55 years or he should be retained in service till the age of

58 years, i.e., the age of superannuation. The High Court

recommended that the respondent should be reverted to

his substantive post of Senior Subordinate Judge/Chief

Judicial Magistrate and that he might be allowed to

continue in service till the age of 58 years. The State again

sought recommendation about his retirement. The High

Court recommended against compulsory retirement. The

State Government did not agree and retired the respondent

compulsorily. The High Court in a Writ Petition filed by the

respondent quashed the order. In appeal this Court

examined the scope of Article 235 of the Constitution and

held that control which is vested in the High Court is

complete control subject only to the power of the Governor

in the matter of appointment including dismissal, removal,

99

reduction in rank and the initial posting and of the initial

promotion to District Judges. According to this Court

when a case is not of removal or dismissal or reduction in

rank, any order in respect of exercise of control over the

judicial officers is by the High Court and cannot be by any

other authority. What is explained by this Court is that

there cannot be dual control and if the State Government is

to have the power of deciding whether a judicial officer

should be retained in service after attaining the age of 55

years up to the age of 58 years, that will seriously affect the

independence of the Judiciary and take away the control

vested in the High Court. What is ruled by this Court in

the said decision is that it is unsound to contend that the

Governor and not the High Court has the power to retire a

judicial officer compulsorily under Section 14 of the Punjab

General Clauses Act.

70.In paragraph 18 of the reported judgment this Court has

held that the control vested in the high Court is that if the

High Court is of the opinion that a particular judicial officer

10

is not fit to be retained in service, the High Court will

communicate that to the Governor because the Governor is

the authority to dismiss, remove, reduce in rank or

terminate the appointment, but in such cases it is the

contemplation in the Constitution that the Governor as the

head of the State will act in harmony with the

recommendation of the High Court. According to this

Court, if the recommendation of the High Court is not held

to be binding on the State, the consequences will be

unfortunate. What is highlighted by this Court in the said

decision is that it is in public interest that the State will

accept the recommendation of the High Court. As a

principle, it is stated in the said decision that the vesting of

complete control over the subordinate Judiciary in the High

Court leads to this that the decision of the High Court in

matters within its jurisdiction will bind the State.

71. In Baldev Raj Guliani (1976) 4 SCC 201, this Court had

occasion to consider and interpret the provisions of Articles

235, 311 and 234 read with Article 309 of the Constitution.

10 In the said case adverse reports having been received

against the appellant while he was acting as Subordinate

Judge, disciplinary proceedings were initiated against him

by the High Court. After preliminary enquiry, he was

suspended and on the findings of the departmental enquiry

and on consideration of his explanation in reply to show-

cause notice under Article 311(2), the High Court

recommended to the Government that the officer should be

removed from service. The State Government although on

its own showing was inclined to agree with the views of the

High Court and with the recommendations made by it,

however referred the case to the Haryana Public Service

Commission for advice purporting to act under Article

320(3) of the Constitution. The Commission advised that

no case had been made out against the appellant and that

he should be exonerated. The Governor accepted the

advice of the Commission and passed the order for

reinstatement. The High Court, however, did not issue any

posting order as it regarded the order of reinstatement by

the Governor illegal. It even requested the Government to

10

review its order.

72.Thereupon the appellant filed a writ petition praying for a

writ of mandamus directing the high Court to issue an

appropriate order of posting and also for a mandamus

directing the Government to disburse full salary to him and

other consequential reliefs. While the writ petition was

pending the Governor compulsorily retired him.

Subsequently a Full Bench of the High Court delivered its

judgment holding the order of reinstatement violative of

Article 235, for the Governor was bound to accept the

recommendation of the High Court as regards the

subordinate judiciary. Therefore, the appellant preferred

an appeal before this Court. Three questions were

considered by this Court in the said case - (1) whether the

Government is bound under the Constitution to accept the

recommendation of the High Court and to pass an order of

removal of the judicial officer, (2) whether consultation with

the Public Service Commission in the matter of a

disciplinary proceeding relating to the judicial officer under

10

the control of the High Court is unconstitutional. Was the

order of reinstatement passed by the Government

constitutionally valid, and (3) if not what will be position of

the officer on the date of the officer's compulsory

retirement? Was an order of removal possible after that

date?

73.After considering the scheme envisaged by different

provisions of the Constitution this Court held that the

appointing authority of a Subordinate Judge under Article

235 as well as under the Appointment Rules, is the

Governor because under Article 235 itself the Subordinate

Judge will be governed by the Appointment Rules made

under Article 234 read with Article 309. This Court then

considered the submission of the appellant that the

Governor being the appointing authority, both under Article

235 and the Appointment Rules read with the Punishment

Rules, is the final authority to pass the order of removal of

the officer and is not under any constitutional obligation to

be bound by the recommendation of the High Court and

10

also the assertion made on behalf of the High Court that

Article 235 leaves no option to the Governor to refuse to

accept its recommendation in a disciplinary matter in

respect of a judicial officer. This Court found that the High

Court in making its recommendation to the Governor for

passing the order of removal, had rightly conceded the

authority of the Governor to pass the same. Thereafter the

Court considered the question : Is the recommendation of

the High Court binding on the Governor, and answered

that since the Governor is the ultimate authority to pass

the order for removal it will not be correct always to insist

that he has no authority even under certain extraordinary

circumstances to decline to accept, forthwith, the

particular recommendation, but ordinarily and as a matter

of graceful routine, recommendations of the High Court are

and should be always accepted by the Governor, because

that is ordinarily so and should be in practice the rule as a

matter of healthy convention.

10 74.In paragraph 28, of the reported decision this Court has

held that the quality of exclusive control of the High Court

does not appear to be whittled down by the constitutional

device of all orders issued in the name of the Governor as

the head of the State administration and, therefore, when

the High Court exercising disciplinary control over the

subordinate judiciary finds, after a proper enquiry, that a

certain officer is guilty of gross misconduct and is

unworthy to be retained in judicial service and, therefore,

recommends to the Governor his removal or dismissal, it is

difficult to conceive how and under what circumstances

such a recommendation should be rejected by the Governor

acting with the aid and advice of the Council of Ministers

or, as is usually the case, of one of the ministers. It is

explained by this Court in the said decision that in this

context more than once the Supreme Court has observed

that the recommendation of the High Court in respect of

judicial officers should always be accepted by the Governor,

and this is the inner significance of the constitutional

provisions relating to the subordinate judiciary. This Court

10

further noted that whenever in an extraordinary case, rare

in itself, the Governor feels, for certain reasons that he is

unable to accept the High Court's recommendations, these

reasons will be communicated to the High Court to enable

it to reconsider the matter, but it is, however, inconceivable

that without reference to the High Court, the Governor

would pass an order which had not been earlier

recommended by the High Court. This Court further

explained that such a course will be contrary to the

contemplation in the Constitution and should not take

place. In para 36 of the reported decision , this Court has

explained the power and/or role of Governor in such

matters and laid down the law authoritatively as under : -

"36. The Governor could not have passed any order

on the advice of the Public Service Commission in

this case. The advice should be of no other

authority than the High Court in the matter of

judicial officers. This is the plain implication of

Article 235. Article 320(3)(c) is clearly out of place

so far as the High Court is concerned dealing with

judicial officers. To give any other interpretation to

article 320(3)(c) will be to defeat the supreme object

underlying Article 235 of the Constitution specially

intended for the protection of the judicial officers

and necessarily the independence of the

10

subordinate judiciary. It is absolutely clear that the

Governor cannot consult the Public Service

Commission in the case of judicial officers and

accept its advice and act according to it. There is

no room for any outside body between the Governor

and the High Court."

It may be noted that in the case of Baldev Raj Guliani (supra),

this Court had considered the case of Shamsher Singh and

thereafter has laid down above mentioned proposition of law.

In the decision delivered in case of Baldev Raj Guliani, this

Court has not ruled that the Governor has to act in aid and on

advice of the Council of Ministers. What is ruled is that the

recommendation made by the High Court is binding on the

Governor.

75. Again in the case of Regist rar, High Court of Madras Vs.

R. Rajaiah, (1988) 3 SCC 211, the High Court had decided

to compulsorily retire the respondents but had not

communicated the recommendations to the Governor for

passing formal orders of compulsory retirement. Instead

the High Court had passed the orders of compulsory

retirement under FR 56 (d). As there was no formal order

by the Government under FR 56 (d), this Court held that

10

the impugned orders of the High Court were ineffective.

Ultimately, this Court did not interfere with the view

expressed by the Division Bench of the High Court on

merits of the matter and held that the High Court was

perfectly justified in quashing orders of compulsory

retirement. However, this Court considered the scope of

Article 235 of the Constitution and held that the test of

control is not the passing of an order against a member of

the subordinate judicial service, but the power to take such

decision and action. The Court explained that so far as the

members of the subordinate judicial service are concerned,

it is the Governor, who being the appointing authority, has

to pass an order of compulsory retirement or any order of

punishment against such a member, but passing or signing

of such orders by the Governor will not necessarily take

away the control of the High Court vested in it under Article

235 of the Constitution. This Court further explained that

an action against any Government servant consists of two

parts. Under the first part, a decision will have to be made

whether an action will be taken against the Government

10

servant and in the second part, the decision would be

carried out by a formal order. Having explained this, this

Court proceeded to hold that the power of control envisaged

under Article 235 of the Constitution relates to the power of

making a decision by the High Court against a member of

the subordinate judicial service and such a decision is

arrived at by holding an enquiry by the High Court against

the member concerned, and after the High Court comes to

the conclusion that some action either in the nature of

compulsory retirement or by the imposition of a

punishment, as the case may be, has to be taken against

the member concerned, the High Court will make a

recommendation in that regard to the Governor and the

Governor will act in accordance with such recommendation

of the High Court by passing an order in accordance with

the decision of the High Court. What is ruled by this Court

is that the Governor cannot take any action against any

member of a subordinate judicial service without and

contrary to the recommendation of the High Court. After

review of the law on the subject matter till then, this Court

11

has made following pertinent observations, in para 18 of

the reported decision: -

"18. The control of the High Court, as understood,

will also be applicable in the case of compulsory

retirement in that the High Court will, upon an

enquiry, come to a conclusion whether a member of

a subordinate judicial service should be retired

prematurely or not. If the High Court comes to the

conclusion that such a member should be

prematurely retired, it will make a recommendation

in that regard to the Governor inasmuch as the

Governor is the appointing authority. The Governor

will make formal order of compulsory retirement in

accordance with the recommendation of the High

Court."

Again, in para 20 of the reported decision, this Court, while

holding that so long as there is no formal order by the

Governor, the compulsory retirement, as directed by the High

Court would not take place, has, inter-alia observed that "It

may be that the power of the Governor under Rule 56(d) of the

Fundamental Rules is very formal in nature, for the Governor

merely acts on the recommendation of the High Court by

signing an order in that regard". The proposition of law laid

down in this case also supports the contention of the

respondents that in the matter of disciplinary action against a

11

member of the Subordinate Judicial Service, the Governor has

no option, but to pass final order on the basis of the

recommendation of the High Court.

76. It may be mentioned that in this case, i.e., Registrar, High

Court of Madras (supra), this Court has referred to the

decision of Shamsher Singh (supra), and has thereafter

ruled that Governor has to act in accordance with the

recommendation of the High Court by passing an order in

accordance with the decision of the High Court and the

Governor cannot take any action against any member of

the judicial service without and contrary to the

recommendation of the High Court.

77. This Court further finds that in Registrar (Admn.) High

Court of Orissa, Cuttack (Supra), decision of Orissa High

Court on administrative side was required to be forwarded

to the Governor for passing an order of the compulsory

retirement but this was not done, and an order of

compulsory retirement was passed by the High Court itself.

This decision was challenged before the high Court on

11

judicial side. The writ petition was decided in favour of

judicial officers holding that the order dated February 5,

1987 compulsorily retiring them was bad in law. In appeal,

this Court considered the scope of Articles 233 to 235 of

the Constitution as well as Articles 55 and 368 in the light

of basic feature of the Constitution namely independence of

the judiciary. After noticing several previous decisions on

the point, this Court considered the powers of the High

Court and held that the Governor is bound by the

recommendation of the High Court but the constitutional

propriety requires that the recommendation would be sent

by the High Court to the Governor and formal order would

be passed by the Governor. Explaining the scope of

Articles 234, 235 and 311 of the Constitution, a five-Judge

Constitution Bench of this Court has held that while the

High Court retains the power of disciplinary control over

the subordinate judiciary, including the power to initiate

disciplinary proceedings, suspend them pending enquiries

and impose punishment on them but when it comes to the

question of dismissal, removal, reduction in rank or

11

termination of the services of the judicial officer, on any

count whatsoever, the High Court becomes only the

recommending authority and cannot itself pass such an

order. What is ruled by the Constitution Bench is that the

formal order to give effect to such a decision has to be

passed only by the State Governor on the recommendation

of the High Court.

78.In the said case, this Court found that by not making an

order of compulsory retirement on the recommendation of

the High Court, a peculiar situation was created in the

sense that the judicial officers were neither in service nor

were they technically out of service nor had they performed

any work and, therefore, in order to balance the equities

between the parties and in order to give litigation a

quietous, this Court had requested the Governor of the

State to pass a formal order of compulsory retirement of

judicial officers.

79.On review of law, what is ruled by the Constitution Bench

of this Court is that undoubtedly, the High Courts alone

11

are entitled to initiate, to hold enquiry and to take a

decision in respect of dismissal, removal, reduction in rank

or termination from service, but the formal order to give

effect to such a decision has to be passed only by the State

Governor on the recommendation of the High Court, and it

is well settled again by a catena of decisions of this Court

that the recommendation of the High Court is binding on

the State Government/Governor.

80. In Tej Pal Singh Vs. State of U.P. and Another, (1986) 3

SCC 604, the State Government moved the High Court in

the year 1967 with proposal of premature retirement of the

appellant, an Additional District and Sessions Judge. On

July 8, 1968 the Administrative Judge agreed with the

proposal of premature retirement after giving three months'

notice. The Governor passed the order of retirement on

August 24, 1968. Three days thereafter, on August 27,

1968 the Administrative Committee of the High Court gave

its approval to the recommendation of the Administrative

Judge earlier communicated to the State Government.

11 Thereafter on August 30, 1968 the Additional Registrar

transmitted the order of retirement to the appellant. It was

actually served on the appellant on September 3, 1968.

The question for consideration in this case before this

Court was whether the order of compulsory retirement

passed against the appellant satisfied the requirements of

the Constitution. While allowing the appeal, this Court

held that the impugned order of premature retirement

passed by the Governor without having before him the

recommendation of the Administrative Committee or of the

Full Court was void and ineffective. What is ruled is that it

is for the High Court, on the basis of assessment of

performance and all other aspects germane to the matter to

come to the conclusion whether any particular judicial

officer under its control is to be prematurely retired and

once the High Court comes to the conclusion that there

should be such retirement, the Court recommends to the

Governor to do so, and the conclusion is to be of the High

Court since the control vests therein. After noticing the

Rules obtaining in the Allahabad High Court, this Court

11

held that the Administrative Committee could act for and

on behalf of the Court but the Administrative Judge could

not have done so and therefore his agreeing with the

Government proposal was of no consequence and did not

amount to the satisfaction of the requirement of Article

235. After noting that it was only after the Governor

passed the order on the basis of such recommendation,

that the matter was placed before the Administrative

Committee before the order of retirement was actually

served on the appellant, this Court held that the deviation

was not a mere irregularity which could be cured under

Rule 21 of the Rules of Court, 1952 by the ex post facto

approval given by the Administrative Committee to the

action of the Governor after the order of premature

retirement had been passed and the error committed was

an incurable defect amounting to an illegality. This Court

took notice of the decision of the Court in State of U.P. Vs.

Batuk Deo Pati Tripathi, (1978) 2 SCC 102, and ruled

therein that the Governor can pass an order of compulsory

retirement only on the recommendation made by the High

11

Court or the Administrative Committee. Further, in

paragraph 18 of the reported decision, this Court observed

that in view of the control over the members of lower

judiciary vested in the High Court by virtue of Article 235 of

the Constitution, the Governor is bound, in each case, to

act in accordance with the recommendation of the High

Court. This decision also takes the firm view that the

recommendation made by the High Court is binding on the

Governor.

81.Thus, it is fairly well settled by catena of decisions of this

Court that in the matter of compulsory retirement of a

Judicial Officer the Governor cannot act on the aid and the

advice of Council of Ministers but has to act only on the

recommendation of the High Court. Though the Lt.

Governor is a party to these appeals, he has not raised any

plea that the recommendation made by the Delhi High

Court was not binding on him and he could have acted in

the matter only on the aid and advice of his Council of

Ministers. Thus the order of the Lt. Governor compulsorily

11

retiring the appellants without seeking aid and advice of his

Council of Ministers is neither ultra vires nor illegal and is

rightly sustained by the High Court. The Governor could

not have passed any order on the aid and advice of Council

of Ministers in this case. The advice should be of no other

authority except that of the High Court in the matter of

judicial officers. This is the plain implication of Article 235.

Reliance on Article 239AA(4) is entirely out of place so far

as the High Court is concerned, dealing with the judicial

officers. To give any other interpretation to Article

239AA(4) will be to defeat the supreme object underlying

Article 235 of the Constitution, specially intended for

protection of the judicial officers and necessarily

independence of the subordinate judiciary. It is absolutely

clear that the Governor cannot take the aid and advice of

his Council of Ministers in the case of judicial officers and

accept its advice and act according to it. There is no room

for any outside body between the Governor and the High

Court. Therefore, this Court does not find any substance

in this contention also and the same is rejected.

11 82.The next point which was argued on behalf of the

appellants was that the appellants were made to retire

compulsorily from service without affording them an

opportunity to make representation against the ACR of the

year 2000 wherein they were graded as "`C' doubtful

integrity", which was the basis for their compulsorily

retirement, and, therefore, the orders retiring them

compulsorily from service are liable to the set aside. It was

vehemently contended that in such circumstances when

ACR of 2000 wherein the appellants were graded as "`C'

doubtful integrity" which was the sole basis of passing the

order of compulsory retirement, the respondents were

under legal obligation to look into the representation of the

appellants against those adverse remarks but before the

appellants could made the representation against the said

ACR, orders retiring them compulsorily from service were

passed, and, therefore, the orders impugned should be

regarded as arbitrary, unfair and unreasonable.

12 83.In the appeal arising from SLP No. 27028 of 2008 deceased

Mr. R.S. Verma had stated that adverse remark for the year

2000 was communicated to him vide letter dated

September 21, 2001 by the Registrar, Vigilance, Delhi High

Court which was received by him on September 25, 2001,

whereas on the same date i.e. on September 21, 2001 the

Screening Committee had taken decision to retire him

prematurely from service which was accepted by the Full

Court in its meeting held on September 22, 2001 and

though in the letter communicating ACR it was mentioned

that he was entitled to made representation within six

weeks, the order of compulsory retirement against him was

passed on September 27, 2001 which was communicated

to him on September 28, 2001 and as he was deprived of

making any representation against the ACR for the year

2000, the order retiring him from service compulsorily was

bad in law.

84.In the Appeal arising from Special Leave Petition No.27200

of 2008 it was contended by M.S. Rohilla that in the ACR

12

for the year 2000, recorded by the Full Court on May 24,

2001, he was graded `C-Integrity doubtful' and he was

communicated the said ACR and was asked to submit his

representation within six weeks, but within three days

thereafter i.e. on September 27, 2001 decision was taken to

retire him compulsorily from service and, therefore, the

order retiring him compulsorily from service was illegal.

85.In Appeal arising out of Special Leave Petition No. 314 of

2009 it was contended on behalf of P.D. Gupta that the

Full Court had recorded remarks `C-Integrity Doubtful' for

the year 2000, in his case, which was communicated to

him vide letter dated September 22, 2001 and he was

asked to file his representation against the remarks within

six weeks, but without waiting for the representation to be

filed by him, the High court upon the adverse remarks of

2000 had recommended his premature retirement to the Lt.

Governor under F.R. 56(j) read with Rule 33 of the DJS

Rules, and therefore the order retiring him from service

should have been set aside by the High Court.

12 86.As against this it was emphasized on behalf of the

respondents that this Court not only has taken the view

that a single adverse entry reflecting on the integrity of the

officer is sufficient because there has to be constant vigil by

the High Court over subordinate judiciary but this Court

has further taken the view that it is not necessary that

such an entry should have been communicated or that the

officer concerned should have an opportunity to represent

against the said adverse entry or that before it could be

taken into consideration and acted upon, the

representation should have been considered or rejected.

87.The High Court in the impugned judgment, while

considering this plea raised on behalf of the appellants, has

inter alia held that action under FR 56(j) need not await the

final disposal of such representation. It may be mentioned

that in support of their respective contentions, the learned

counsel have cited several decisions for the guidance of the

Court but this Court proposes to refer to only those

judgments which are relevant for deciding the issue.

12 88.Compulsory retirement from service is not considered to be

a punishment. Under the relevant rules, an order of

dismissal is a punishment laid on a Government servant

when it is found that he has been guilty of misconduct or

the like. It is penal in character because it involves loss of

pension which under the Rules have accrued in respect of

the service already put in. An order of removal also stands

on the same footing as an order of dismissal and involves

the same consequences, the only difference between them

being that while a servant who is dismissed is not eligible

for re-appointment, one who is removed is. A compulsory

retirement is neither dismissal nor removal and differs from

both of them, in that it is not a form of punishment

prescribed by the rules and involves no penal

consequences, in as much as the person retired is entitled

to pension and other retiral benefits, proportionate to the

period of service standing to his credit.

89. As explained by a Bench of three Hon'ble Judges of this

Court in State of U.P. vs. Shyam Lal Sharma AIR 1971

12

SC 2151, in ascertaining, whether the order of compulsory

retirement is one of punishment, it has to be ascertained,

whether in the order of compulsory retirement there was

any element of charge or stigma or imputation or any

implication of misbehaviour or incapacity against the

officer concerned. Secondly, the order of compulsory

retirement will be indicative of punishment or penalty if the

order will involve loss of benefits already earned. Thirdly,

as order of compulsory retirement on the completion of 25

years of service or an order of compulsory retirement made

in the public interest to dispense with further service will

not amount to an order for dismissal or removal as there is

no element of punishment. Fourthly, an order of

compulsory retirement will not be held to be an order in the

nature of punishment or penalty on the ground that there

is possibility of loss of future prospects, namely, that the

officer will not get his pay till he attains the age of

superannuation, or will not get an enhanced pension for

not being allowed to remain a few years in service and

being compulsorily retired. So far as the present cases are

12

concerned, this Court finds that there are no words in the

orders of compulsory retirement, which throw any stigma

against the two appellants and the deceased officer.

Therefore, it is not necessary for this Court to make inquiry

into the Government files to discover whether any remark

amounting to stigma could be found in the files. The

reason is that it is the order of compulsory retirement,

which alone is for examination. If the order itself does not

contain any imputation or charge against the two

appellants and the deceased officer, the fact that

considerations of misconduct or misbehaviour weighed

with the High Court in coming to its conclusion to retire

them compulsorily does not amount to any imputation or

charge against them. It is not established from the order of

compulsory retirement itself that the charge or imputation

against the appellants was made a condition for exercise of

the power. Therefore, the orders of retirement cannot be

considered to be one for dismissal or removal in the nature

of penalty or punishment.

12 90.Now, the policy underlying Article 311(2) of the

Constitution is that when it is proposed to take action

against the servant by way of punishment and that will

entail forfeiture of benefits already earned by him, he

should be heard and given an opportunity to show cause

against the order. The confidential reports provide the

basic and vital inputs for assessing the performance of an

officer and his advancement in his career as also to serve

the data for judging his comparative merits when the

questions arise for his confirmation, promotion, grant of

selection grade, crossing E.B., retention in service beyond

the age of 50 years etc. Maintenance of such records is

ordinarily regulated by administrative rules or instructions.

Writing the confidential report is primarily and essentially

an administrative function. Normally tribunals/Courts are

loath to interfere in cases of complaints against adverse

remarks and to substitute their own judgment for that of

the reporting or reviewing officers. It is because these

officers alone are best suited to judge the qualities of

officials working under them and about their competence in

12

the performance of official duties entrusted to them.

Despite fear of abuse of power by prejudiced superior

officers in certain cases, the service record contained in the

confidential reports, by and large, reflects the real

personality of the officer. The object of writing confidential

reports and making entries therein is to give an opportunity

to the public servant to improve excellence. Article 51 A(j)

of the Constitution enjoins upon every citizen the primary

duty to constantly endeavour to prove excellence,

individually and collectively, as a member of the group.

Therefore, the officer entrusted with the duty to write C.R.

has a public responsibility and trust to write the C.R.

objectively, fairly and dispassionately while giving, as

accurately as possible the statement of facts on an overall

assessment of performance of the subordinate officer.

Opportunity of hearing is not necessary before adverse

remarks because adverse remarks by themselves do not

constitute a penalty. However, when the order of

compulsory retirement is passed, the authority concerned

has to take into consideration the whole service record of

12

the officer concerned which would include non-

communicated adverse remarks also. Thus it is settled by

several reported decisions of this Court that un-

communicated adverse remarks can be taken into

consideration while deciding the question whether an

official should be made to retire compulsorily or not.

91. In State of U.P. and Another Vs. Bihari Lal (1994) Supp

(3) SCC 593, this Court has taken the view that even an

adverse entry which has been set aside in appeal on

technical grounds could also be taken into consideration.

The plea that since the last entry, i.e., `C-Integrity Doubtful'

for the year 2000 was communicated almost around the

same time when the order of compulsory retirement was

communicated and as the appellants had no opportunity to

represent against the same, it ought not to have been taken

into consideration and that the consideration of the said

last adverse entry vitiates the order of compulsory

retirement has no merits. This Court has consistently

taken the view that an order of compulsory retirement is

12

not a punishment and does not have adverse consequence

and, therefore, the principles of natural justice are not

attracted. What is relevant to notice is that this Court has

held that an un-communicated adverse A.C.R. on record

can be taken into consideration and an order of compulsory

retirement cannot be set aside only for the reason that

such un-communicated adverse entry was taken into

consideration. If that be so, the fact that the adverse

A.C.R. was communicated but none of the appellants had

an opportunity to represent against the same, before the

same was taken into consideration for passing order of

compulsory retirement, cannot at all vitiate the order of

compulsory retirement.

92. In State of U.P. and another vs. Biharilal (supra), this

Court has ruled that before exercise of the power to retire

an employee compulsorily from service, the authority has to

take into consideration the overall record, even including

some of the adverse remarks, though for technical reasons,

might have been expunged on appeal or revision. What is

13

emphasised in the said decision is that in the absence of

any mala fide exercise of power or arbitrary exercise of

power, a possible different conclusion would not be a

ground for interference by the Court/Tribunal in exercise of

its power of judicial review. According to this Court, what

is needed to be looked into is whether a bona fide decision

is taken in the public interest to augment efficiency in the

public service. Again, a three Judge Bench of this Court in

Union of India vs. V.P. Seth and another 1994 SCC

(L&S) 1052, has held that uncommunicated adverse

remarks can be taken into consideration while passing the

order of compulsory retirement. The bench in the said case

made reference to Baikuntha Nath Das vs. Chief District

Medical Officer, Baripada (1992) 2 SCC 299, as well as

Posts and Telegraphs Board vs. C.S.N. Murthy (1992) 2

SCC 317, and after reiterating, with approval, the

principles stated therein, has laid down firm proposition of

law that 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

13

taken into consideration. Applying the ratio laid down in

the above-mentioned two cases to the facts of the present

cases, this Court finds that the authorities concerned were

justified in relying upon the adverse entry made against the

two appellants and the deceased officer in the year 2000

indicating that their integrity was doubtful alongwith other

materials. Here in these cases, the ACRs for the year 2000

were communicated to the three officers but before they

could exercise the option given to them to make

representation against the same, the orders of compulsory

retirement were passed. When an uncommunicated

adverse entry can be taken into consideration, while

passing order of compulsory retirement, there is no reason

to hold that adverse entry communicated, against which

opportunity of making representation is denied, cannot be

taken into consideration at the time of passing order of

compulsory retirement. Merely because the two appellants

and the deceased officer had no opportunity to make

representation against the said entry or that the

representation made against the same was pending, would

13

not render consideration of the said entry illegal, in any

manner, whatsoever.

93. In Baidyanath Mahapatra Vs. State of Orissa and

Another (1989) 4 SCC 664, the Review Committee

constituted by the Government of Orissa in October 1983

to determine the appellant's suitability for retention in

service after his completing the age of 50 years,

recommended the appellant to be compulsorily retired

under Rule 71(1)(a) of the Orissa Service Code. The

Committee took into account for formulating its opinion,

the entries awarded to him for the years 1981-82 and

1982-83 which had been communicated to the appellant on

July 5, 1983 and August 9, 1983 respectively. The

appellant made representations against entries on

November 1, 1983 but without disposing them of, the

Government made an order on November 10, 1983

compulsorily retiring the appellant from service, which was

upheld by the State Administrative Tribunal. Allowing the

appeal this Court held that the appellant had right to make

13

representation against the adverse entries within six

months, and, therefore, the adverse entries awarded to him

in the years 1981-82 and 1982-83 could not have been

taken into account either by the Review Committee or by

the State Government in forming the requisite opinion as

contemplated by Rule 71(1)(a) of the Orissa Service Code,

before the expiry of the period of six months. According to

the Court, the proper course for the Review Committee

should have been not to consider those entries or in the

alternative, the Review Committee should have waited for

the decision of the Government on the appellant's

representation. This Court in the said decision emphasized

the purpose of communicating adverse entries and held

that delay in communication of adverse entries should be

avoided. This Court finds that the said case did not deal

with entry which had adverse reflection on the integrity of

the official concerned.

94. In S. Maheswar Rao Vs. State of Orissa and Another

1989 Supp (2) SCC 248 the appellant was a

13

Superintending Engineer. His case was considered under

the first proviso to Rule 71(a) of the Orissa Service Code

and on the basis of adverse remarks awarded to him for the

last three years, i.e., for the years 1980-81, 1981-82 and

1982-83, the Review Committee had made recommendation

for his premature retirement. At that time his

representation against the adverse remarks relating to the

first year was pending. Against the remarks for the other

years, he made representations subsequently and the State

Government had without disposing of these representations

compulsorily retired him. The Bhubaneswar

Administrative Tribunal disapproved the taking into

consideration of the remarks for the first year but

sustained the impugned order of compulsory retirement on

the basis of remarks for the subsequent years. While

allowing the appeal this Court observed that adverse

entries for the years 1981-82 and 1982-83 could not have

been taken into consideration for the premature retirement

of the appellant, and the Review Committee should have

deferred the consideration of his case till his representation

13

against the aforesaid adverse entries was disposed of or in

the alternative the State Government itself should have

considered and disposed of the representation before

issuing the order for premature retirement. However, in

this case also, this Court finds that this was not a case of

consideration of adverse entry relating to the integrity of

the officer concerned.

95. Though the learned counsel for the appellants have relied

upon decision in V.K. Jain Vs. High Court of Delhi

through Registrar General and Others, (2008) 17 SCC

538, this Court finds that basically the said decision deals

with expunction of adverse remarks made by the High

Court against a judicial officer while setting aside his

judicial order granting bail to an accused. It emphasizes,

the judicial restraints to be exercised by the High Courts in

judicial functions. It does not deal with compulsory

retirement of a judicial officer or how to write his ACR.

Therefore, detailed reference to the same is avoided.

13 96. However, this Court finds that in Union of India Vs. Col.

J.N. Sinha and Another, 1970 (2) SCC 458, the

respondent was compulsorily retired by the Government of

India under Fundamental Rule 56(j). The said order was

challenged by the respondent amongst other things on the

ground that the lack of opportunity to show cause

amounted to denial of natural justice. The said plea was

accepted by the High Court and High Court had issued a

writ of certiorari quashing the said order. In appeal this

Court held that a Government Servant serving under the

Union of India holds his office at the pleasure of the

President, but this `pleasure' doctrine is subject to the rules

or law made under Article 309 as well as to the conditions

prescribed under Article 311. This Court firmly held that

rules of natural justice are not embodied rules nor can they

be elevated to the position of fundamental rights, and the

Court cannot ignore the mandate of the Legislature or a

statutory authority. After holding that the compulsory

retirement involves no civil consequences and that a

Government servant does not lose any of the rights

13

acquired by him before retirement, it was held that

Fundamental Rule 56 (j) holds the balance between the

rights of the individual Government servant and the

interests of the public. According to this Court, while a

minimum service is guaranteed to the Government servant,

the government is given power to energize its machinery

and make it more efficient by compulsorily retiring those

who in its opinion should not be there in public interest.

Thus the plea of breach of principles of natural justice was

not accepted by this Court in the said case.

97. In Baikuntha Nath Das and Another Vs. Chief District

Medical Officer, Baripada and Another, (1992) 2 SCC

299, the three Judge Bench of this Court had occasion to

consider the question of effect of uncommunicated adverse

remarks taken into consideration while passing order of

compulsory retirement against the appellants of that case

and scope of judicial review of the order retiring an

employee compulsorily from service. The appellants in the

appeals were compulsorily retired by the Government of

13

Orissa in exercise of the power conferred upon it by the

first Proviso to sub-rule (a) of Rule 71 of the Orissa Service

Code. The appellant Mr. Baikuntha Nath Das was

appointed as a Pharmacist by the Civil Surgeon,

Mayurbhanj on March 15, 1951. By an order dated

February 13 1976 the Government of Orissa had retired

him compulsorily. The said Order was challenged by him

in the High Court of Orissa by way of a Writ Petition. His

case was that the order was based on no material and that

it was the result of ill-will and malice, the Chief District

Medical Officer bore towards him. According to him he

was transferred by the said officer from place to place and

was also placed under suspension at one stage, but his

entire service had been spotless and that at no time were

any adverse entries in his confidential character rolls

communicated to him. In the counter affidavit filed on

behalf of the Government it was submitted that the

decision to retire him compulsorily was taken by the

Review Committee and not by the Chief Medical Officer and

it was stated that besides the remarks made in the

13

confidential character rolls, other material was also taken

into consideration by the Review Committee and that it had

arrived at its decision bona fide and in public interest

which decision was accepted and approved by the

Government. In the Counter the allegation of mala fide was

denied. The High Court had looked into the proceedings of

the Review Committee and the confidential character rolls

of the appellant and dismissed the writ petition holding

that an order of compulsory retirement after putting in the

prescribed qualifying period of service does not amount to

punishment. The High Court had observed that the order

in question was passed by the State Government and not

by the Chief Medical Officer and did not suffer from vice of

malice. It was further held by the High Court that it was

true that the confidential character roll of the appellant

contained several remarks adverse to him which were, no

doubt, not communicated to him. On behalf of the

appellants who were compulsorily retired reliance was

placed upon the decisions of this Court in Brij Mohan

Singh Chopra Vs. State of Punjab, (1987) 2 SCC 188 and

14

Baidyanath Mahapatra (Supra) in support of the

contention that it was not permissible to the respondent

Government to order compulsory retirement on the basis of

material which included uncommunicated adverse

remarks, whereas on behalf of the respondent Government

reliance was placed upon the decision in Union of India

Vs. M.E. Reddy, (1980) 2 SCC 15, to contend that it was

permissible to the Government to take into consideration

uncommunicated adverse remarks also while taking a

decision to retire a Government servant compulsorily. A

study of the decision rendered by the three Judge Bench of

this Court makes it evident that not less than twenty

reported decisions of this Court were taken into

consideration and thereafter the Court has overruled the

decision in Baidyanath Mahapatra Vs. State of Orissa

(1989) 4 SCC 664, which took the view that

uncommunicated adverse remarks cannot be taken into

consideration while passing an order of compulsory

retirement against a Government servant.

14 98. In Baikuntha Nath Das case, after referring to decision of

this Court in Brij Mohan Singh Chopra Vs. State of

Punjab (1987) 2 SCC 188, where a three Judge Bench of

this Court has specifically affirmed the decision rendered in

Union of India Vs. M.E. Reddy (1980) 2 SCC 15, this

Court has laid down following firm proposition of law stated

in paragraph 34 of the reported decision:

"34. The following principles emerge from the above

discussion:

(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.

(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 this 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.

14

(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.

Interference is permissible only on the grounds

mentioned in (iii) above.."

99.In view of the two three Judge Bench decisions of this

Court mentioned above the contention that adverse

remarks relating to integrity regarding which no

opportunity of making representation was provided or

pending representation was not considered and, therefore,

orders of compulsory retirement were bad in law cannot be

accepted. Therefore, the said contention is hereby rejected.

14 100.Another point which was canvassed for consideration of

the Court was that Rule 31A of DJS Rules incorporated

since 1.1.1996 covers entire field of age of retirement and

premature retirement of Delhi Judicial Officers and,

therefore, premature retirement of the appellants could not

have been made before their attaining the age of 58 years.

According to the learned counsel for the appellants Rule

31A was added by notification dated 1.1.1996 issued by Lt.

Governor on the recommendation of the Delhi High Court

under Article 309 of the Constitution to DJS Rules on the

subject of retirement, providing the normal age of

retirement as 60 years with proviso of compulsory

retirement at the age of 58 years and for voluntary

retirement at the age of 58 years and after addition of this

Rule, Rule 33 of DJS Rules could not have been invoked for

application of Fundamental Rules, on the subject of normal

age of retirement, age of premature retirement and

assessment of performance as well as age of voluntary

retirement. What was emphasized was that after

introduction of Rule 31A in DJS Rules the subject of

14

premature retirement cannot be considered to be a

residuary matter for which no Rule exists in DJS rules and,

therefore, premature retirement of the appellants could not

have been ordered before they attained the age of 58 years.

101.The learned counsel for the High Court argued that this

point was given up before the High Court and, therefore,

the Court should not permit the appellants to agitate the

same in appeals arising from grant of special leave. In

support of this submission reliance was placed by the

learned counsel for the High Court on: (1) State of

Maharashtra Vs. Ramdas Shrinivas Nayak & Anr., (1982)

2 SCC 463, (2) Shankar K. Mandal & Ors. Vs. State of

Bihar & Ors., (2003) 9 SCC 519, (3) Mount Carmel

School Society Vs. DDA, (2008) 2SCC 141, and (4)

Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. &

Ors., (2003) 2SCC 111.

102.Without prejudice to the above contention, it was argued by

the learned counsel for the High Court that in All India

Judge's Association Vs. Union of India & Ors., (1992) 1

14

SCC 119, this Court directed that the age of retirement of

the judicial officers be increased to 60, and when a review

was filed, this Court in All India Judges' Association and

others vs. Union of India and others (1993) 4 SCC 288,

while maintaining that the judicial officers be permitted to

serve up to the age of 60 years, imposed a condition that all

judicial officers would not be entitled to the said benefit

automatically, but only those who were found fit after the

evaluation of their fitness would be permitted to go up to

60 years and this Court expressed the view that the

standard of evaluation could be the same as for compulsory

retirement. The learned counsel emphasized that while

giving the said direction, this Court expressly and

specifically provided that the ordinary provisions relating to

compulsory retirement at earlier stages were not dispensed

with and they will continue to operate, and, therefore,

incorporation of Rule 31A in the Delhi Judicial Service was

made but it is wrong to contend that Rule 31A overrides

the other provisions of the Rules and in particular, Rule 33

read with Fundamental Rules which provide for

14

compulsory retirement after a judicial officer attains the

age of 50 years. According to the learned counsel for the

respondent, Rule 31A has no bearing and impact in

deciding whether the order of compulsory retirement

against the appellant in terms of Rule 33 read with F.R.

56(j) is valid or not.

103.Though High Court in paragraph 45 of the impugned

judgment has observed that the plea taken in the writ

petition filed by Mr. Gupta that FR 56(j) read with Rule 33

of the DJS Rules is not applicable after the introduction of

Rule 31 of the DJS rules, was dropped at the time of

argument by the learned counsel for the appellant

conceding that the order could have been passed under the

aforesaid provision, this Court finds that this was a

concession on point of law which would not bind the

appellants. Further in the interest of justice it is necessary

to settle the controversy once for all and, therefore, though

in view of decisions cited by the learned counsel for the

High Court, it is accepted as correct by this Court that the

14

point sought to be argued was dropped before the High

Court, it would not be in the interest of justice to preclude

the learned counsel for the appellants from agitating this

point before this Court. Under the circumstances, the

Court proposes to examine the said contention on merits.

104.It is well known fact that in All India Judge's Association

(Supra), this Hon'ble Court in paragraph 63(iii) directed

that :

"Retirement age of judicial officers be raised to 60

years and appropriate steps are to be taken by

December 31, 1992."

105.In Second All India Judge's Association & Others Vs.

Union of India & Others, (1993) 4 SCC 288, this Court

clarified in paragraph 30 of the said judgment as under :

"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 records of

service and evidence of their continued utility to the

judicial system...................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

Justice of the High Courts and the evaluation shall

be made on the basis of the judicial officer's past

14

record of service, character rolls, quality of

judgments and other relevant matters."

106.In paragraph 31 of the reported decision this Court has

inter alia observed that the standard of evaluation shall be

as applicable to compulsory retirement. However what is

relevant to notice is paragraph 52 wherein this Court

observed and directed as under:-

"The assessment directed here is for evaluating the

eligibility to continue in service beyond 58 years of

age and is in addition to and independent of the

assessment for compulsory retirement that may

have to be undertaken under the relevant Service

Rules, at the earlier stage/s."

107.In Nawal Singh Vs. State of U.P. & Another, (2003) 8

SCC 117, this Court had again occasion to consider the

observations made in All India Judge's Association case

(second) and after making reference to the said decision

this Court observed as under :-

"..........there is no embargo on the competent

authority to exercise its power of compulsory

retirement under Rule 56 of the Fundamental

Rules. As stated above, we have arrived at the

conclusion that because of the increase in

retirement age, rest of the Rules providing for

14

compulsory retirement would not be nugatory

and are not repealed."

108.Again in Ramesh Chandra Acharya Vs. Registrary, High

Court of Orissa and Another, (2000) 6 SCC 332, this

Court observed in paragraph 8 of the reported decision that

"the Court thereafter clarified that the assessment at the

age of 58 years is for the purpose of finding out suitability

of the officers concerned 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."

109.In view of the direction contained in All India Judge's

Association case Rule 31 was inserted in DJS Rules with

effect from 1.1.1996 providing that the normal age of

retirement of the Delhi Judicial Officers governed by D.J.S.

Rules would be 60 years. The potential for continued

utility was to be assessed and evaluated at the age of 58

years because the benefit of the increase of the retirement

15

age to 60 years was not available automatically to all

judicial officers irrespective of their past records of service.

Though this Court observed that the standard of evaluation

for determining the potential for continued utility should be

the same as for compulsory retirement but it was

specifically made clear that the assessment directed was for

evaluating the eligibility to continue in service beyond 58

years of age and was in addition to and independent of the

assessment for compulsory retirement that might have to

be undertaken under the relevant Service Rules at the

earlier stage/s. The clarification made by this Court in All

India Judge's Association case No. 2 leaves the matter in

no doubt that the independent assessment for compulsory

retirement to be undertaken under the relevant Service

Rules is not affected at all in any manner whatsoever. It is

true that the performance of a judicial officer is to be

evaluated for determining his utility to continue in service

upto the age of 60 years but it is wrong to contend that

Rule 31 overrides Rule 33, which deals with residuary

matters which includes compulsory retirement of a judicial

15

officer after he attains the age of 50 years. It is rightly

contended by the learned counsel for the High Court that

Rule 31A has bearing and impact in deciding the question

whether the order of compulsory retirement against the

appellant in terms of Rule 33 read with F.R. 56(j) is valid or

not. The newly added rule does not deal with the aspect of

compulsory retirement at all. In terms of Rule 33 the

subject of compulsory retirement did remain residuary even

after the introduction of Rule 31A in DJS Rules and,

therefore, the question of premature retirement will have to

be considered only under FR 56(j) and not under the newly

added Rule 31A. Thus consideration of the case of the

appellant for premature retirement before he attained the

age of 58 years cannot be regarded as illegal in any manner

at all. This Court does not find any substance in this

contention raised on behalf of the appellant and, therefore,

the same is rejected.

110.Another point which was pressed into service for

consideration of the Court was that the procedure of

15

recording ACR wherein the appellants were given adverse

remarks was in violation of rules of principles of natural

justice and as there was no material which would justify

adverse entries in ACR's of the appellants, the same could

not have been taken into consideration while passing

orders of compulsory retirement. On behalf of the deceased

Mr. Verma it was argued that there was no material to

retire him prematurely and it was admitted by the High

Court in his case that premature retirement was not

ordered because of complaints, but on the bona fide

impression and opinion formed by the High Court. It was

also argued on behalf of Mr. Verma that no inspection was

made, of the judicial work done by him for the years 1998,

1999 and 2000 and as this fact was not denied in the

counter affidavit filed by the High Court, the order retiring

him compulsorily from service suffers from vice of malice in

law, and should have been set aside by the High Court on

judicial side. Mr. Rohilla who had argued his appeal in

person had contended that the order of compulsory

retirement was expected to have been passed on the basis

15

of all the material available prior to the passing of the order

but the material in respect of which he had made

representation which was pending to be replied or

representation against the material which was still required

to be submitted, could not have been relied upon for

passing order of compulsory retirement. According to him,

the so called material relied upon was only one-sided view

and was not the wholesome exercise which was required to

be undertaken before passing order of compulsory

retirement. Mr. Rohilla had further argued that there was

no record of any complaints either oral or in writing nor

there was any record to show whether the complaints

related to his judicial work on the basis of which ACR of

the year 2000 were recorded. The oral communication by

members of the Bar or by office bearers of the Bar

Association was thoroughly irrelevant in the absence of

particulars mentioned in the ACR and, could not have been

taken into consideration while passing order of compulsory

retirement.

15 111.On behalf of the appellant Mr. P.D. Gupta, it was

contended that for the year 2000 Hon'ble Mr. Justice

M.S.A. Siddique was appointed as Inspecting Judge by the

High Court but Hon'ble Mr. Justice Siddique had retired on

29.5.2001 without giving any Inspection Report and he had

not inspected his Court during the year at all, whereas

during the year 2001, three Judges had been appointed as

Inspecting Judges namely Hon'ble Mr. Justice Dalveer

Bhandari (as he then was), Hon'ble Mr. Justice Mukul

Mudgal (as he then was) and Hon'ble Mr. Justice R.C.

Chopra, but the report for the year 2000 in his respect was

given by Hon'ble Mr. Justice K.S. Gupta who was not the

Inspecting Judge either for the year 2000 or for the year

2001 and as Hon'ble Mr. Justice Gupta had visited his

Court on 7.9.2001 and stayed only for ten minutes and

asked him to send three judgments delivered in the year

2000 which were sent by the appellant on 10.9.2001, the

report given by Hon'ble Mr. Justice Gupta grading him as

an average officer could not have been taken into

consideration by the High Court while passing the order of

15

compulsory retirement. It was further pointed out on his

behalf that Hon'ble Mr. Justice Gupta had observed in his

report dated 11.9.2001 that on inquiry from the cross

section of Bar, he had come to know that Mr. Gupta did not

enjoy good reputation and on the basis of this report, the

Full Court in its meeting held on 21.9.2001 had graded his

ACR as `C' (integrity doubtful) without supplying the

material to him and, therefore, order retiring him

compulsorily from service was bad in law.

112.In reply to abovementioned contentions it was argued by

the learned counsel for the High Court that a single adverse

entry indicating that the integrity of the officer is doubtful

is sufficient to order his compulsory retirement, even if the

said adverse entry relates to a distant past and in respect

of all the three appellants the last ACR for the year 2000 is

C "integrity doubtful", which by itself is sufficient to sustain

orders of compulsory retirement passed against them.

113.So far as Mr. M. S. Rohilla is concerned, it was submitted

by the learned counsel for the respondent High Court that

15

there were two adverse ACR's for the years 1993 and 1994

indicating that his integrity was doubtful and the

representations made by him against the same were

considered and rejected, which decisions were not

challenged by him by way of a writ petition before the High

Court nor there was any challenge to the ACRs either in the

earlier writ petition filed by him challenging his reversion

from the Delhi Higher Judicial Service to the Delhi Judicial

Service nor in the writ petition challenging the order of

compulsory retirement and, therefore, order retiring him

compulsorily cannot be regarded as illegal or arbitrary.

114.While dealing with the arguments advanced on behalf of

the appellant Mr. P.D. Gupta it was stressed that for two

years i.e. 1994 and 1995 his ACRs were C "Integrity

Doubtful" which were challenged by him by filing a Writ

Petition and though the learned Single Judge of the High

Court had allowed the Writ Petition, the Division Bench in

appeal had set aside the judgment of the learned Single

Judge and upheld the adverse ACRs "C Doubtful Integrity"

15 for the years 1994 and 1995, against which Special Leave

Petition filed by Mr. P.D. Gupta was also dismissed after

which Review Petition was filed by him against the

judgment of the Division Bench in Letters Patent Appeal,

which was also dismissed and thus those entries having

become final, it would be wrong to contend that order of

compulsory retirement passed in his case was liable to be

set aside.

115.On consideration of rival submissions, this Court finds that

there is no manner of doubt that the nature of judicial

service is such that the High Court cannot afford to suffer

continuance in service of persons of doubtful integrity.

Therefore, in High of Judicature at Bombay Through its

Registrar Vs. Shirishkumar Rangrao Patil and Another,

(1997) 6 SCC 339, this Court emphasized that it is

necessary that there should be constant vigil by the High

Court concerned on its subordinate judiciary and self

introspection. It is well settled by a catena of decisions of

this Court that while considering the case of an officer as to

15

whether he should be continued in service or compulsorily

retired, his entire service record upto that date on which

consideration is made has to be taken into account. What

weight should be attached to earlier entries as compared to

recent entries is a matter of evaluation, but there is no

manner of doubt that consideration has to be of the entire

service record. The fact that an officer, after an earlier

adverse entry, was promoted does not wipe out earlier

adverse entry at all. It would be wrong to contend that

merely for the reason that after an earlier adverse entry an

officer was promoted that by itself would preclude the

authority from considering the earlier adverse entry. When

the law says that the entire service record has to be taken

into consideration, the earlier adverse entry, which forms a

part of the service record, would also be relevant

irrespective of the fact whether officer concerned was

promoted to higher position or whether he was granted

certain benefits like increments etc. Therefore, this Court

in State of Orissa and Others Vs. Ram Chandra Das,

(1996) 5 SCC 331, observed as under in paragraph 7 of

15

the reported decision :-

"........ it is settled law that the Government is

required to consider the entire record of service......

.... 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."

116.Thus the respondent High Court was justified in taking

into consideration adverse ACRs reflecting on integrity of

Mr. M.S. Rohilla for the years 1993, 1994 and 2000 while

considering the question whether it was expedient to

continue him in service on his attaining the age of 50

years. Similarly, in so far as appellant Mr. P.D. Gupta is

concerned for two years that is 1994 and again in 1995 his

ACRs were C "Integrity Doubtful" and again in the year

2000, the position was the same. Further, for two years,

i.e., 1994 and 1995 his ACRs "C Integrity Doubtful" were

upheld by the Division Bench of the High Court against

which his Special Leave Petition was dismissed. At this

16

stage it would be relevant to notice certain observations

made by Division Bench of the High Court while allowing

the Letters Patent Appeal filed by the High Court against

the judgment of the learned Single Judge by which the

ACRs for two years were set aside, which are as follows: -

"To summarize, it is held:

a) The adverse remarks recorded by the High

Court in the Confidential Reports of

respondent No.1 for the years 1994 and 1995

were not without any `material'. They were

recorded on the basis of material on record

and the judgment of the learned Single Judge

quashing those remarks is hereby set aside.

b) The learned Single Judge should not and could

not have graded B+ to respondent No.1 as it is

the function of the High Court to assign

appropriate grading. Therefore, the matter

should have been referred to the Full Court for

giving appropriate grading. This direction of

the learned Single Judge is accordingly set

aside.

c) Direction of the learned Single Judge in

treating the petitioner as promoted w.e.f. 18th

May, 1996 is not correct in law and is

therefore, set aside."

117.The above findings would indicate that the appellant Mr.

Gupta is not justified in arguing that there was no material

16

on the basis of which adverse entries could have been

made against him for the years 1994 and 1995 nor is he

justified in urging that the order of compulsory retirement

also based on those two adverse entries is liable to be set

aside.

118.In S.D. Singh vs. Jharkhand High Court through R.G.

and others (2005) 13 SCC 737, benefit of enhanced

retirement age from 58 to 60 years was denied to the

appellant. The Evaluation Committee, after perusing his

service record, recommended that he should not be

continued in service beyond the age of 58 years. The Full

Court, on assessment and evaluation of service record,

resolved that the benefit of extension in age up to 60 years

should not be extended to him. The appellant relied upon

his promotional order superseding several senior officers.

However, he had not alleged mala fide against any one.

The Evaluation Committee had, after considering his ACR,

noted that he was an average officer and the vigilance

proceedings initiated against him were dropped. While

16

dismissing his appeal, this Court has held that there was

material, on the basis of which, an opinion was formed and

promotion would not indicate that he was fit to be

continued after the age of 58 years. The material,

according to this Court, against the appellant in that case,

was that he was an average officer and the vigilance

proceedings initiated were dropped. If on these materials,

benefit of enhanced retirement was denied to Mr. S.D.

Singh, this Court has no hesitation in concluding that

having regard to the service record of the two appellants

and the deceased officer, the High Court was justified in

compulsorily retiring them from service.

119.The argument that material was not supplied on the basis

of which "`C' Doubtful Integrity" was awarded to the

appellants and, therefore, the order of compulsory

retirement is liable to be set aside has no substance.

Normally and contextually word `material' means

substance, matter, stuff, something, materiality, medium,

data, facts, information, figures, notes etc. When this Court

16

is examining as to whether there was any `material' before

the High Court on the basis of which adverse remarks were

recorded in the confidential reports of the appellants, this

`material' relates to substance, matter, data, information

etc. While considering the case of a judicial officer it is not

necessary to limit the `material' only to written complaints

or `tangible' evidence pointing finger at the integrity of the

judicial officer. Such an evidence may not be forthcoming

in such cases.

120.As observed by this Court in R.L. Butail Vs. Union of

India and Others, (1970) 2 SCC 876, it is not necessary

that an opportunity of being heard before recording adverse

entry should be afforded to the officer concerned. In the

said case, the contention that an inquiry would be

necessary before an adverse entry is made was rejected as

suffering from a misapprehension that such an entry

amounts to the penalty of censure. It is explained by this

Court in the said decision that making of an adverse entry

is not equivalent to imposition of a penalty which would

16

necessitate an enquiry or giving of a reasonable opportunity

of being heard to the concerned Government servant.

Further in case where the Full Court of the High Court

recommends compulsory retirement of an officer, the High

Court on the judicial side has to exercise great caution and

circumspection in setting aside that order because it is a

complement of all the judges of the High Court who go into

the question and it is possible that in all cases evidence

would not be forth coming about doubtful integrity of a

Judicial Officer.

121.As observed by this Court in High Court of Punjab &

Haryana through R.G. Vs. Ishwar Chand Jain and

Another, (1999) 4 SCC 579, at times, the Full Court has

to act on the collective wisdom of all the Judges and 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 reputation of being corrupt would gather thick and

16

unchaseable clouds around the conduct of an officer and

gain notoriety much faster than the smoke. Sometimes

there may not be concrete or material evidence to make it

part of the record. It would, therefore, be impracticable for

the reporting officer or the competent controlling officer

writing the confidential report to give specific instances of

shortfalls, supported by evidence.

122.Normally, the adverse entry reflecting on the integrity

would be based on formulations of impressions which

would be result of multiple factors simultaneously playing

in the mind. Though the perceptions may differ in the very

nature of things there is a difficulty nearing an

impossibility in subjecting the entries in the confidential

rolls to judicial review. Sometimes, if the general

reputation of an employee is not good though there may

not be any tangible material against him, he may be

compulsorily retired in public interest. The duty conferred

on the appropriate authority to consider the question of

continuance of a judicial officer beyond a particular age is

16

an absolute one. If that authority bona fide forms an

opinion that the integrity of a particular officer is doubtful,

the correctness of that opinion cannot be challenged before

courts. When such a constitutional function is exercised

on the administrative side of the High Court, any judicial

review thereon should be made only with great care and

circumspection and it must be confined strictly to the

parameters set by this Court in several reported decisions.

When the appropriate authority forms bona fide opinion

that compulsory retirement of a judicial officer is in public

interest, the writ Court under Article 226 or this Court

under Article 32 would not interfere with the order.

123.Further this Court in M.S. Bindra's case (Supra) has used

the phrase `preponderance of probability' to be applied

before recording adverse entry regarding integrity of a

judicial officer. There is no manner of doubt that the

authority which is entrusted with a duty of writing ACR

does not have right to tarnish the reputation of a judicial

officer without any basis and without any `material' on

16

record, but at the same time other equally important

interest is also to be safeguarded i.e. ensuring that the

corruption does not creep in judicial services and all

possible attempts must be made to remove such a virus so

that it should not spread and become infectious. When

even verbal repeated complaints are received against a

judicial officer or on enquiries, discreet or otherwise, the

general impression created in the minds of those making

inquiries or the Full Court is that concerned judicial officer

does not carry good reputation, such discreet inquiry and

or verbal repeated complaints would constitute material on

the basis of which ACR indicating that the integrity of the

officer is doubtful can be recorded. While undertaking

judicial review, the Court in an appropriate case may still

quash the decision of the Full Court on administrative side

if it is found that there is no basis or material on which the

ACR of the judicial officer was recorded, but while

undertaking this exercise of judicial review and trying to

find out whether there is any material on record or not, it is

the duty of the Court to keep in mind the nature of

16

function being discharged by the judicial officer, the

delicate nature of the exercise to be performed by the High

Court on administrative side while recording the ACR and

the mechanism/system adopted in recording such ACR.

124.From the admitted facts noted earlier it is evident that

there was first a report of the Inspecting Judge to the effect

that he had received complaints against the appellants

reflecting on their integrity. It would not be correct to

presume that the Inspecting Judge had written those

remarks in a casual or whimsical manner. It has to be

legitimately presumed that the Inspecting Judge, before

making such remarks of serious nature, acted responsibly.

Thereafter, the Full Court considered the entire issue and

endorsed the view of the Inspecting Judge while recording

the ACR of the appellants. It is a matter of common

knowledge that the complaints which are made against a

judicial officer, orally or in writing are dealt with by the

Inspecting Judge or the High Court with great caution.

Knowing that most of such complaints are frivolous and by

16

disgruntled elements, there is generally a tendency to

discard them. However, when the suspicion arises

regarding integrity of a judicial officer, whether on the basis

of complaints or information received from other sources

and a committee is formed to look into the same, as was

done in the instant case and the committee undertakes the

task by gathering information from various sources as are

available to it, on the basis of which a perception about the

concerned judicial officer is formed, it would be difficult for

the Court either under Article 226 or for this Court under

Article 32 to interfere with such an exercise. Such an

opinion and impression formed consciously and rationally

after the enquiries of the nature mentioned above would

definitely constitute material for recording adverse report in

respect of an officer. Such an impression is not readily

formed but after Court's circumspection, deliberation, etc.

and thus it is a case of preponderance of probability for

entertaining a doubt about integrity of an official which is

based on substance, matter, information etc. Therefore, the

contention that without material or basis the adverse

17

entries were recorded in the ACR of the appellants cannot

be upheld and is hereby rejected.

125.On behalf of deceased R.S. Verma his learned Counsel had

argued that ACRs for the years 1997, 1998 and 1999 were

written in one go which is arbitrary and constitute malice

in law. Pointing out to the Court that normal procedure

followed by the Delhi High Court for communicating the

ACRs is referred to in the circular dated 4.9.1998,

according to which conducting of inspection and making of

enquiries before condemning a judicial officer as regards

his integrity is necessary, but this was not done in the case

of the deceased and, therefore, his ACRs for the years

1997, 1998 and 1999 should have been ignored while

deciding the question whether he was fit to be retained in

service on attaining the age of 50 years. It was emphasized

that all the entries should be communicated within a

reasonable period so that the employee concerned gets an

opportunity to make representation and that the

representation is also decided fairly within a reasonable

17

period, but this was not done in the case of the deceased

officer. According to the learned counsel for the appellant,

the requirement to write ACR on due date and

communication thereof to the employee concerned within

reasonable time flows from constitutional obligation of

fairness, non-arbitrariness and natural justice as laid down

in Dev Dutt Vs. Union of India, 2008 (8) SCC 725, and

Abhijit Ghosh Dastidar Vs. Union of India, 2009 (16)

SCC 146, and as this requirement was committed breach

of in case of the deceased, ACRs for the years 1996 and

1997 had lost their significance and were irrelevant while

considering case of the deceased officer for compulsory

retirement. On behalf of the respondent High Court it was

submitted that it was true that ACRs for the years 1997,

1998 and 1999 were recorded at one point and

communicated thereafter, but a detailed note indicating the

circumstances in which ACRs for the years 1997, 1998 and

1999 were placed before the Full Court on 13.12.2000 after

which ACRs were recorded and, therefore, in view of the

explanation offered in the note which was noted by the Full

17

Court on 13.12.2000, it is wrong to contend that ACRs for

those three years could not have been taken into

consideration before passing order of compulsory

retirement against the deceased officer.

126.On consideration of the argument advanced by the learned

counsel for the parties, this Court finds that it has been

ruled by this Court that ACRs for several years should not

be recorded at one go and communicated thereafter.

Normally, entries in confidential records should be made

within a specified time soon following the end of the period

under review and generally within three months from the

end of the year. Delay in carrying out inspections or

making entries frustrates the very purpose sought to be

achieved. The mental impressions may fade away or get

embellished. Events of succeeding years may cast their

shadow on assessment of previous years. In a given case,

proper inspection might not have been conducted nor

notes/findings of inspection might have been properly

maintained. In such a case, there is every possibility of a

17

judicial officer being condemned arbitrarily for no fault on

his part. Therefore, recording of entries for more than one

year, later on, at the same time should be avoided.

However, the learned counsel for the respondent is right in

contending that no decision has taken the view that merely

for the reason that ACRs for more than one years are

recorded at one point of time, the same are bad or that they

would cease to be ACRs for the relevant years or that they

should not be taken into consideration for any purpose or

for the purpose of compulsory retirement. As stated

earlier, in the normal course it would not be appropriate to

record the ACRs of number of years at one point of time.

However, at the same time it is not possible to lay down as

an absolute proposition of law that irrespective of good,

cogent, plausible and acceptable reasons, recording of

ACRs of number of years at once should always be

regarded as illegal and bad for all purposes. This Court,

while deciding the appeals, has gone through the record of

the deceased officer, and other relevant documents

produced by the High Court. From the record, this Court

17

finds that all the columns of ACR forms for the years 1997,

1998 and 1999 were filled up by the inspecting judges

respectively well in time for all these years, but the

inspecting judges had not recorded any remarks

concerning the judicial reputation for honesty and

impartiality of the deceased officer as a corollary the

column regarding "Net Result" for these years were left

blank by them. Instead the learned inspecting judges had

observed that these remarks be recorded by the Full Court.

When such a course of action is adopted, the reason is

obvious. There was something amiss in the estimation of

the learned inspecting Judges which they wanted entire

Full Court to consider and, therefore, refrained from

making their observations. If everything had been all right,

nothing prevented the learned Inspecting Judges from

mentioning that the honesty of the deceased officer was not

in doubt at all. However, when an inspecting judge

receives certain complaints about the integrity of the officer

concerned but has no means to verify the same, he leaves

the matter to the Full Court, which appoints a Committee

17

to go into the aspects and records relevant entries after

report of the Committee is received. This is what precisely

happened in the present case as well. Because of the

aforesaid course adopted by the learned Inspecting Judges,

the consideration of recording the ACR was deferred by the

Full Court and ultimately, in its meeting held on 21.4.2001

in respect of the deceased officer the Full Court decided as

under :-

"Deferred. Referred to the Committee constituted to

look into the allegations against the judicial

Officers."

127.The matter was, therefore, examined by the Committee of

two learned judges of the Delhi High Court constituted for

this purpose. This committee made certain discreet

inquiries. The concerned Inspecting Judge(s) were also

associated in deliberations by the Committee. The

Committee gave its report dated 6.12.2001 as per which

the information gathered by the Committee from various

sources confirmed the allegation of doubtful integrity

against the deceased officer. The matter was thereafter

17

placed before the Full Court and the ACRs of the deceased

officer were recorded for the years 1997, 1998 and 1999 on

13.12.2000. Thus there is sufficient explanation for

recording the ACRs of three years at one time. It is wrong

to contend that the ACRs for the years 1997, 1998 and

1999 should have been ignored while passing the order of

compulsory retirement against the deceased officer.

Therefore, the argument that ACRs for those years could

not have been taken into consideration while deciding the

question of suitability or otherwise to continue the

deceased officer in service on attaining the age of 50 years,

is hereby rejected. Even if it is assumed for the sake of

argument that ACRs recorded for the three years, i.e.,

1997, 1998 and 1999 recorded at one go, irrespective of

reasons, good, bad or indifferent, must be ignored for all

time to come and for all the purposes, this Court finds that

the ACRs for the year 1999 were recorded with promptitude

and without any delay in the year 2000. It is not argued on

behalf of the deceased officer that there was any delay in

recording ACRs for the year 1999. For the year 1999, the

17

deceased officer was assessed as "C Below Average". The

ACRs for the year 1999 could have been taken into

consideration while assessing the service record of the

deceased officer for determining the question whether the

deceased officer was fit to be continued in service on his

attaining the age of 50 years. What is the effect of ACRs for

the year 1999 when taken into consideration along with

other service record is proposed to be considered at a little

later stage.

128.On behalf of deceased officer Mr. R.S. Verma, it was

argued that Mr. Verma's ACRs for the years 1997, 1998

and 1999, which were written at one go and also were

communicated at one go, suffer from arbitrariness,

unreasonableness and constitute malice in law. This Court

has come to the conclusion that writing of ACRs for the

years 1997, 1998 and 1999 at one time as also

communication of the same at one time was justified in the

circumstances of the case. Therefore, it is difficult to

uphold the contention raised on behalf of Mr. Verma that

17

writing of ACRs for three years at one go and

communication of the same at one go suffer from

arbitrariness, unreasonableness and constitute malice in

law.

129.Similarly, the plea raised by Mr. Rohilla that the

impugned judgment is not sustainable in law because the

act of the High Court in making recommendation to Lt.

Governor for retiring him compulsorily emanates from mala

fide, arbitrariness and perversity, has no substance. The

reason given by Mr. Rohilla to treat the order of his

compulsory retirement as mala fide, arbitrary and perverse

is that while communicating adverse remarks for the year

2000 vide letter dated 21.9.2001, High Court had granted

six weeks' time to make representation, but much before

the representation could be caused, the order of

compulsory retirement dated 27.9.2001 was

communicated, coupled with the fact that on that date, the

writ petition filed by him against his reversion was pending.

This Court has already taken the view that merely because

17

Mr. Rohilla did not get any opportunity to make

representation against the adverse remarks for the year

2000, those remarks could not have been ignored by the

competent authority while passing the order of compulsory

retirement against him because the settled law is that even

uncommunicated adverse remarks can be taken into

consideration while passing the order of compulsory

retirement. So far as the writ petition, filed by Mr. Rohilla

against his reversion is concerned, this Court finds that the

order of compulsory retirement was not passed to render

the said petition infructuous. The order of compulsory

retirement has been passed on assessment of whole service

record of Mr. Rohilla. Thus, Mr. Rohilla has failed to

substantiate the plea that the order of his compulsory

retirement is either mala fide or arbitrary or perverse.

130.Mr. R. S. Rohilla had argued that the order of the Lt.

Governor compulsorily retiring him from service was by

invoking FR 56(j) which was not applicable to his case as

he was a member of a Delhi Higher Judicial Service and

18

such an order could have been passed only under Rule 27

of the Delhi Higher Judicial Service read with Rule 16 of

the Indian Administrative Services and, therefore, the same

should be set aside. It is rightly pointed out by the learned

counsel for the High Court that though the said plea was

raised by Mr. Rohilla the same was given up before the

High Court, and it is so recorded by the Division Bench in

paragraph 31 of the impugned judgment. Thus, in normal

circumstances, Mr. Rohilla would not be justified in

arguing the same point before this Court. However, even if

it is taken for granted that he is entitled to argue the point

before this Court because it is a pure question of law, this

Court does not find any substance what so ever in the

same. What is relevant to be noticed is that under both the

Rules there is power to compulsorily retire a judicial officer

after he attains the age of 50 years in public interest.

Therefore, whether the Lt. Governor had invoked FR 56 (j)

or Rule 27 of the DJS is of little consequence since both the

Rules make provision for retirement of a judicial officer

compulsorily from service after he attains the age of 50

18

years in public interest. In fact Mr. Rohilla should have

pointed out to the High Court the relevant and material fact

that for two years that is for the year 1993 and for the year

1994 he had suffered adverse ACR `C' "Integrity Doubtful"

and that the representations made by him were rejected

which were not challenged by him before higher forum. In

any view of the matter, it is settled law that when power

can be traced to a valid source, the fact that the power is

purported to have been exercised under a wrong provision

of law, would not invalidate exercise of power.

131.To sum up, this Court finds that so far as deceased officer

Mr. Rajinder Singh Verma is concerned, he was appointed

in the year 1995 and as on 21.9.2001 his ACRs for six

years were available. The grading given to him for these

years was as follows: -

Year Grading

1995 "B" (Average) No representation was

made against this

remark, nor was it

challenged before any

authority.

1996 "B" (Average) No representation was

18

made against this

remark, nor was it

challenged before any

authority.

1997 "C" (Below Average)

1998 "C" (Below Average)

1999 "C" (Below Average)

2000 "C" (Integrity doubtful)

132.The report dated September 21, 2001 of the Screening

Committee further reveals that the Screening Committee

had considered the entire record relevant to his work and

conduct and found that throughout his career, he had been

assessed and graded either as "average officer" or "officer

below average" and in the year 2000, his integrity was

found to be doubtful. The Screening Committee had also

found that for the year 1998, the Inspecting Judge of Mr.

Verma had made a remark that the judgments and orders

written by him were just average; whereas the Inspecting

Judges for the year 1996 to 2000 had not recorded any

remark concerning his judicial reputation for honesty and

18

impartiality and the column "Net Result" was left to be

recorded by the Full Court. The record further shows that

the judicial work was withdrawn from him with effect from

December 8, 2000 upon the recommendation of the

Committee of Judges in its report dated December 6, 2000.

This decision was never challenged by him before any

authority. It goes without saying that withdrawal of

judicial work from a judicial officer is a serious matter and

such a drastic order would not have been passed unless

the judicial work performed by him was found to be

shocking and perverse. Later on, all work including

administrative work was withdrawn from him. Further,

pursuant to the decision taken by the Full Court in its

meeting held on April 21, 2001 referring the matter to a

Committee of Judges to make inquiry into his work and

conduct, the Committee had submitted its report dated

September 8, 2001 in which it was observed and recorded

that he did not enjoy good reputation and integrity. There

was gradual down fall in his performance as a judicial

officer. The service record of the deceased officer is so

18

glaring that on the basis thereof any prudent authority

could have come to a reasonable conclusion that it was not

in the public interest to continue him in service and that he

should be compulsorily retired from service. Therefore, the

order of compulsory retirement passed against the

deceased officer is not liable to be set aside.

133.So far as Mr. Rohilla is concerned, he was appointed as a

Civil/Sub-Judge in the Subordinate Judicial Services on

May 5, 1972. On June 17, 1995, he was confirmed as an

officer in the Delhi Judicial Services. He was granted

Selection Grade on June 3, 1980 and was promoted to the

Higher Judicial Services as Additional District and Sessions

Judge on November 1, 1989. One anonymous complaint

was received against him and after looking into the same,

he was reverted to Subordinate Judicial Services by order

dated February 15, 1995, which was challenged by him in

Writ Petition No. 4589 of 1995. Meanwhile, he was served

with a communication from the High Court of Delhi dated

October 23, 1997, wherein his ACR for the year 1996 was

18

graded as "C", i.e., below average. Thereupon, he had

made a representation, which was rejected on December 2,

1998. No steps were taken by him to challenge the said

decision and thus, the grading awarded to him was

accepted by him. Thereafter, he received a communication

from the High Court in the year 1999, wherein he was

informed that in his ACR for the year 1997, he was

awarded "B" grade. Again, by a communication dated

February 9, 2000 forwarded by the High Court, he was

informed that in his ACR for the year 1998, he was graded

"B". He made a representation against his ACR for the year

1998 in the year 2000. As noticed earlier, in the year 2000,

he was communicated ACR indicating that his integrity was

doubtful. Thus, the service record of Mr. Rohilla indicates

that he was an officer "below average" or at the best an

average officer and his integrity was doubtful. Under the

circumstances, the decision taken by the competent

authority to retire him from service cannot be said to be

illegal in any manner whatsoever.

18 134.So also, the record of Mr. P.D. Gupta shows that he

joined Delhi Judicial Service on January 28, 1978.

Admittedly, his work and conduct from 1978 to 1992 was

graded as "B", which means his performance was that of an

average officer. In the year 1995, the Inspecting Judge had

reported that though he had not inspected the court of Mr.

Gupta, he had heard complaints about his integrity and,

therefore, column Nos. 6 and 7 were left blank to be filled

up by the Full Court. On May 18, 1986, the Full Court had

recorded his ACR for the year 1994-95 as "C" (integrity

doubtful) and on the basis of the same, denied promotion

to him. He had filed a representation against the same, but

it was rejected by the High Court by an order dated

September 5, 1997. Again on September 26, 1997, the Full

Court of Delhi High Court had recorded his ACR for the

year 1996 as "B". Against rejection of his representation,

which was made with reference to ACRs for the year 1994-

95, he had filed Writ Petition (C) No. 4334 of 1997 and in

the said writ petition he had made a grievance for his non-

promotion to Delhi Higher Judicial Service. Pending the

18

said petition, on May 22, 1998, the Full Court had recorded

his ACR for the year 1997 as "B". The writ petition filed by

Mr. Gupta was allowed by a Single Judge of the High

Court, which decision was set aside in L.P.A. No. 329 of

1999, filed by the High Court administration, and the order

passed by the Division Bench was ultimately upheld by this

Court when the special leave petition filed by Mr. Gupta

against the decision rendered in the L.P.A. was dismissed.

In his ACR for the year 2000, he was categorized as an

officer having doubtful integrity. Thus, the record shows

that for the year 1994-95 his integrity was found to be of

doubtful character. For rest of the years, his performance

was that of an average officer and in the year 2000, his

integrity was again found doubtful. Under the

circumstances, the compulsory retirement of Mr. Gupta

can never be said to be arbitrary or illegal.

135.Having regard to their entire service record of the three

officers, this Court is of the opinion that the competent

authority was justified in passing the order retiring them

18

compulsorily from service. Mere glance at the ACRs of the

deceased officer and two other appellants makes it so

glaring that on the basis thereof the decision to

compulsorily retire them would clearly be without blemish

and will have to be treated as well founded. This Court

finds that before passing the orders in question, whole

service record of each of the officer was taken into

consideration. Keeping in view the comprehensive

assessment of service record, the Screening Committee

rightly recommended that the three officers should be

prematurely retired in public interest forthwith. The Full

Court after considering the report of the Screening

Committee and also after taking into consideration the

record of work and conduct, general reputation and service

record of the three officers correctly resolved that it be

recommended to the Lt. Governor of NCT of Delhi to retire

the judicial officers forthwith in public interest. The orders

do not entail any punishment in the sense that all the

officers have been paid retiral benefits till they were

compulsorily retired from service.

18 136.On a careful consideration of the entire material, it must

be held that the evaluation made by the Committee/Full

Court, forming their unanimous opinion, is neither so

arbitrary nor capricious nor can be said to be so irrational,

so as to shock the conscience of this Court to warrant or

justify any interference. In cases of such assessment,

evaluation and formulation of opinions, a vast range of

multiple factors play a vital and important role and no one

factor should be allowed to be blown out of proportion

either to decry or deify an issue to be resolved or claims

sought to be considered or asserted. In the very nature of

things, it would be difficult, nearing almost an impossibility

to subject such exercise undertaken by the Full Court, to

judicial review except in an extraordinary case when the

Court is convinced that some real injustice, which ought

not to have taken place, has really happened and not

merely because there could be another possible view or

someone has some grievance about the exercise

undertaken by the Committee/Full Court. Viewed thus,

and considered in the background of the factual details and

19

materials on record, there is absolutely no need or

justification for this Court to interfere with the impugned

proceedings. Therefore, the three appeals fail and are

dismissed. Having regard to the facts of the case, there

shall be no order as to costs.

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

(J.M. PANCHAL)

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

New Delhi; (H.L. GOKHALE)

September 12, 2011