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Judgment
B.S. Chauhan, J.—This writ petition has been filed for quashing the orders dated 25.2.1995 and 8.3.1995 (Annex. 2 and 3, respectively), by which the petitioner had been compulsory retired in exercise of powers u/s 56(c) of the U.P. Fundamental Rules.
The facts and circumstances giving rise to this case are that petitioner, who was a judicial officer in the State of Uttar Pradesh, was promoted to the Higher Judicial Service vide order dated 23.7.1984. Subsequently, in view of the provisions of Rule 27 of the U.P. Higher Judicial Service Rules, 1975 he had been granted the Selection Grade in the Higher Judicial Service in September, 1994. Subsequently, he was selected for appointment to the post of President, District Consumer Forum on 24.11.1994. He stood transferred vide order dated 20.1.1995 on administrative ground from Saharanpur to Ballia. He was awarded adverse entry on the basis of the inspection report of the Hon''ble Administrative Judge, and thus, he was compulsorily retired under the said Rule 56 (c) of the Fundamental Rules. Hence this petition.
Learned counsel for the petitioner has submitted that petitioner''s service cord has been excellent. He had been not only promoted to the U.P. Higher Judicial Service but was also granted the Selection Grade. There was no occasion for the High Court to recommend the compulsory retirement of the petitioner. Allowing the officer to cross the efficiency bar, or promoting to a higher pay-scale takes away the effect of every adverse entry even if such an entry is in existence. Therefore, even if there was some adverse entry against the petitioner, that could not be taken into account. The proper procedure has not been followed. The orders impugned are, therefore, liable to be quashed.
On the other hand, Shri K.R. Sirohi, learned counsel for the respondents submitted that petitioner''s service record was not satisfactory. Inspection report of the Administrative Judge in 1994, was far from satisfaction. Integrity of the petitioner was found doubtful. It was based on the visit of the Hon''ble Inspecting Judge to District Saharanpur on 6.10.1994. A gist of the entry was that he does not enjoy good reputation. Therefore, there is no justification for this Court to examine the case of the petitioner. The procedure required for the purpose has been followed strictly. The Rule 56 (c) permits the exercise of power to give compulsory retirement to such a officer. No flaw can be found with the orders impugned and the petition is liable to be dismissed.
We have considered the rival submissions made by the learned counsel for the parties and perused the original record produced by the High Court before us.
The material on record indicates that vide Court''s D.O. Letter No. C-2/CF (A/95 dated 2.1.1995, issued in pursuance of resolution dated 8.12.1994 of the Administrative Committee, the petitioner was advised as under:-
"While making representations proper care be exercised in the use of language towards Hon''ble Judges of this Court."
The service record of the petitioner indicates that the District Judge, Saharanpur had reported vide his D.O. Letter No. Memo A/1995 dated 14.2.1995, as under:-
"During the year 1994-95 the general reputation of Sri K.N. Singh, I additional Sessions Judge, Saharanpur, has not been good. After an incident of marpit with clubs etc., between parties to a litigation before him, just in front of his court, the Assistant D.G.C. (Criminal) attached o his court, was transferred to another court and Sri Kulbhushan Gupta, Additional D.G.C. (Criminal) was attached to his court. Sri K.N. Singh created hindrance in prosecution of cases by him, asked him not to work in his court and ultimately himself directed Sri Ilam Chand Sharma, Assistant D.G.C. (Criminal), attached to his court, not to prosecute cases before him. This fact was brought to my notice by Sri Kulbhushan Gupta, Advocate (Additional D.G.C), and also by the District Magistrate, Saharanpur.
The officer received orders of his transfer to Ballia while I was on earned leave and he being the senior most Additional Sessions Judge, was In charge of criminal work, continued taking interest in such work, including transferring bail applications. He did not hand over charge till my return (for about fourteen days) and handed over only after I persuaded him, two days after my return from leave.
Sri K.N. Singh has been a hindrance to a smooth administration and has been indulging in groupism among the Advocates as well as the staff."
The then Hon''ble Inspecting Judge, Saharanpur had placed a confidential note dated 20.2.1995 before the Hon''ble the Chief Justice indicating therein as b1 below:-
"On my surprise visit to Saharanpur District Courts on 6.10.1994, I found the officer, Sri Keshri Nandan Singh, Additional Sessions Judge, Saharanpur (now at Ballia), that he did not enjoy good reputation regarding his integrity. Several lawyers and litigants, whom I met in cognito, made complaints about his integrity and also that he was in the habit of creating rift between the lawyers and staff. He was recently transferred from Saharanpur to Ballia on administrative grounds in public interest."
Rule 56 (c) of the U.P. Fundamental Rules reads as under:-
"56 (c) Notwithstanding anything contained in clause (a) or clause (b), the appointing authority may, at any time, by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may, by notice to the appointing authority, voluntarily retire at any time after attaining the age of forty five years after he has completed qualifying service for twenty years."
10.. Thus, it is evident that the aforesaid Rule empowers the Competent Authority to compulsorily retire an Officer, if the conditions mentioned therein are fulfilled.
In Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, , the Hon''ble Supreme Court has laid down certain criteria for the Courts, on which it can interfere and they included mala fide, order if based on no evidence, order is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, i.e. if it is found to be a perverse order. The Hon''ble Apex Court observed that the order of compulsory retirement is not a punishment it implies no stigma nor any suggestion of misbehaviour; the order should be passed in public Interest on subjective satisfaction of the Authority and while reviewing the service record, the entire service record is to be considered. However the record of the later years should be given more importance and even un-communicated adverse entries may be taken into consideration. The Apex Court held as under:-
"(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
(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.
(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 un-communicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference."
Similar view has been reiterated in Posts and Telegraphs Board and others Vs. C.S.N. Murthy, ; Sukhdeo Vs. Commissioner Amravati Division, Amravati and Another, ; State of Orissa and others Vs. Ram Chandra Das, ; and M.S. Bindra Vs. Union of India and Others, .
In Rajat Baran Roy and Others Vs. State of W.B. and Others, , the Hon''ble Supreme Court held that there is a very limited-scope of judicial review in a case of compulsory retirement and it is permissible only on the grounds of non-application of mind and want of material particulars.
In Krishena Kumar Vs. S.P. Saksena and Others, , the Hon''ble Apex Court held that what is to be seen by the Court at the time of judicial review, as to whether the Appointing Authority has formed its opinion objectively and whether the order had been passed by the Competent Authority and for such a purpose, constitution of a Committee is permissible, as held by Hon''ble Apex Court in High Court of Judicature for High Court of Judicature for Rajasthan Vs. P.P. Singh and Another, .
In The State of Gujarat and Another Vs. Suryakant Chunilal Shah, , the Hon''ble Supreme Court held that while considering the case of an employee for compulsory retirement, the public interest is of paramount importance. A dishonest, corrupt and dead-wood deserves to be dispensed with, how much efficient and honest an employee is, it is to be assessed on the basis of material on record which may also be ascertained from confidential reports. However, there must be some tangible material against the employee warranting him retirement.
In State of U.P. and Another Vs. Bihari Lal, , the Apex Court held that if the general reputation of an employee is not good, though there may not be any tangible material against him, he may be given compulsory on limited grounds. The Court further held that" what is needed to be looked into, is the bona fide decision taken in public interest to augment efficiency in the public service."
In I.K. Mishra Vs. Union of India and Others, , the Hon''ble Supreme Court observed as under:-
"Power to retire compulsorily a Government servant in terms of Service Rules is absolute, provided the authority concerned forms an opinion bona fide that compulsory retirement is in public interest."
In Prabodh Sagar v. Punjab State Electricity Board and Ors. AIR 2000 SC 1684, the Hon''ble Supreme Court held that employee''s unsatisfactory performance, coupled with the tendency to resort to litigation, most of which was unsuccessful, rendered him a liability to his employer, and he was rightly retired in public interest. In the said case, allegation of mala fide was also rejected for want of particular material.
Similar view has been reiterated in Ramesh Chandra Acharya Vs. Registrar, High Court of Orissa and Another, while dealing with a case of judicial officer.
In S. Prabhjeet Singh Johar Vs. Harjeet Singh and Others, , the Hon''ble Supreme Court placed reliance upon its earlier judgments in Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), , wherein it has been held that an order of compulsory retirement is neither a punishment nor any stigma attached to it, rather, further services of a person are dispensed with in public interest. The Apex Court held that if an employee has been given the adverse entries regarding his integrity at any stage of his service career, he loses the right of continuation in service, and compulsory retirement, if given, should not be interfered with.
In Union of India (UOI) Vs. Col. J.N. Sinha and Another, , the Apex Court held that an employee compulsorily retired does not lose any right acquired by him before retirement, as the compulsory retirement is not intended for taking any personal action against the government servant, and the order so passed can be challenged on the ground that either the order is arbitrary or it is not in public interest. No other ground can be available to the government servant who is sought to be compulsorily retired from service. However, it may be subject to the conditions provided under the statutory provisions.
In Jugal Chandra Saikia Vs. State of Assam and Another, , the Apex Court held that where the screening committee is consisting of responsible officers of the State and they have examined/assessed the entire service record and form the opinion objectively as to whether any employee is fit to be retained in service or not. In absence of any allegation of mala fide, there is no scope of a judicial review against such an order. While deciding the said case, reliance had been placed upon a large number of judgments, particularly, upon judgments in S. Ramachandra Raju Vs. State of Orissa, ; and M.S. Bindra v. Union of India and Ors. (Supra).
Learned counsel for the petitioner placing reliance upon the judgment in High Court of High Court of Judicature at Allahabad Through Registrar Vs. Sarnam Singh and Another, , stressed that since new Rules made by the State Government under Article 309 of the Constitution specifically provides that the judicial officers would retire on attaining the age of sixty years, therefore, it was no longer open to the High Court to have scrutinised the service record of the petitioner, who was entitled to continue in service upto the age of sixty years. Thus, the order of compulsory retirement passed by the State Government on the recommendation of the High Court was wholly erroneous.
The Hon''ble Supreme Court reconsidered the decision rendered in High Court of Nawal Singh Vs. State of U.P. and Another, and upon consideration of the powers and authority of compulsory retirement, the Court held that under Rule 56 (c), which empowers the High Court to pass an order of compulsory retirement after an employee attains the age of fifty years, the High Court in exercise of its competence, may pass the order of compulsory retirement. Simply because of the increase in retirement age under the Uttar Pradesh Judicial Officers (Retirement on Superannuation) Rules, 1992, rest of the Rules providing for compulsory retirement would not be nugatory and are not repealed. The Apex Court has held that it was open to the High Court to follow the procedure for exercising the power under Rule 56 (c) and the procedure prescribed in Explanation 2-A thereto requires that such orders should be in public interest and the appointing authority may take into consideration any material relating to such officer. It inter alia provides that any entry in the service record as also any report of the Vigilance Establishment. No doubt, the Committee was constituted on the basis of the directions by the Hon''ble Supreme Court in All India Judges'' Association Case, but at the same time, before passing the order of compulsory retirement, the High Court exercised its powers under Fundamental rules, and that is specifically mentioned in the order impugned herein. The object of compulsory retirement is to weed out the dead wood in order to maintain high standard of efficiency and honesty to keep judicial service unpolluted. It empowers the authority to retire officers of doubtful integrity which depends upon over all impression gathered by the higher officers. The material on record reveals that all relevant facts have been taken into consideration.
Therefore, as the said judgment in Sarnam Singh (Supra) has further been explained by the Hon''ble Apex Court in Nawal Singh (Supra), the averment advanced at the best of the petitioner is not worth consideration.
The ratio of the judgments in Swami Saran Saksena Vs. State of Uttar Pradesh, ; and D. Ramaswami Vs. State of Tamil Nadu, , where it has been held that on crossing the efficiency bar or promotion, the previous adverse entries stand washed of, has no application in this case as facts are quite distinguishable. In the instant case, adverse remarks were recorded subsequent to his approval for grant of selection grade. More so, the ratio of the said judgments has subsequently been diluted by the larger Benches, Adverse entries made much earlier may lose the sting but do not stand washed off. In such a situation, such old adverse entry cannot be treated to be completely erased even if promotion has been granted to the employee subsequently. (Vide Audh Narain Srivastava v. State of U.P. and Ors. (1984) 3 SLR 499 (All); The State of Punjab Vs. Gurdas Singh, ; and Badrinath Vs. Government of Tamil Nadu and Others, . More so, even if the subjective satisfaction of the High Courts is examined, it cannot be said that the order of compulsory retirement of the petitioner is, in any way, erroneous or unjustified.
It may also be pertinent to mention here that learned counsel for the petitioner placed a very heavy reliance upon the judgment of the Hon''ble Supreme Court in Tej Pal Singh Vs. State of U.P. and Another, , wherein the order of compulsory retirement had been passed by the appointing authority with prior approval of the Administrative Judge instead of Administrative Committee of the High Court. We fail to understand how petitioner seeks the benefits of the said judgments as there is no pleading that the petitioner had been given compulsory retirement not following the procedure prescribed for the same.
Thus, the law on the point can be summarised that the Authority must consider and examine over-all entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said Authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee rendered himself a liability to the institution or his integrity is found to be doubtful, there is no occasion for the Court to interfere in the exercise of its limited power of judicial review.
The instant case is required to be examined in the light of the aforesaid settled legal propositions. Petitioner''s integrity had been found doubtful by the Hon''ble Inspecting Judge after having inspection of the District Court and on complaints of large number of litigants, the District Judge has also written to this court complaining against the petitioner. Petitioner had not been granted the selection grade as it could have been given to him w.e.f. 1.7.1995, and prior to the said date, petitioner stood compulsorily retired. In such a fact-situation, no interference is required in exercise of limited jurisdiction of judicial review.
Thus, we do not find any force in the writ petition. It is accordingly dismissed.