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Judgment
A.K. Shrivastava, J.—By this petition under Articles 226 and 227 of the Constitution of India, the petitioner is seeking quashment of the order of his compulsory retirement dated 13.9.2004 (Annexure P/1).
Case of petitioner:
The case of the petitioner is that he was recruited as Additional District Judge directly on selection being made by the High Court and he joined the judicial service on 17th October, 1979. The cadre of Additional District Judge was abolished in the year 1981 and therefore the petitioner became the District Judge in 1981. On this post he was confirmed in the year 1985. The petitioner did serve and worked as a Member Secretary, Madhya Pradesh State Legal Service Authority from 2000-2002 and he also worked as a Chairman of Sarni Inquiry Commission. During his service tenure he obtained the training course in "Crime Justice" and "Court and Criminal Justice Administration" (National Judicial Academy). The petitioner completed 25 years of Higher Judicial Services and during this period he served as District Judge for near about 3. years
According to the petitioner he is having unblemished service record and almost his all annual confidential reports are "Very Good" except for one or two years and which are more than ten years old and are not relevant in the present context. The petitioner in his memorandum of petition has given the chart containing the details of work done by him and the reports of the portfolio judge in order to show his performance with effect from 1989 to 2003-2004.
Year Portfolio Place Disposal of Report of Judicial work Portfolio In comparison Judges to the Bench Mark
1989-90 Hon''ble Justice Betul 187.83% Favourable Shri S.K. Seth Very Good (Granted Selection Grade
1990-91 Hon''ble Justice Betul 256.00% Very Good Shri Rampal Very Good Singh
199-92 Hon''ble Justice Betul 184.58% Very Good Shri Very Good Recommended K.M. Agrawal Super Time Scale
1992-93 Hon''ble Justice Jhabua 284.33% Not Shri V.S. Kokje Very Good Recommended super Time Scale (Hon''ble CJ. gave remarks as ''poor'')
1993-94 Hon''ble Justice Jhabua 293.15% Very Good Shri J.G. Chitr Very Good Recommended Super Time Scale (However, Hon''ble CJ. gave remarks as ''poor'')
1993-94 Hon''ble Justice Jhabua 293.15% Very Good Shri J.G. Chitre Very Good Recommended Super Time Scale (However, Hon''ble C.J. gave remarks . as ''poor'')
1994-95 Hon''ble Justice Jhabua 87.00 units Very Good Shri J.G. Chitre Good recommended Super Time Scale 1995-96 Hon''ble Justice Rewa 5.90 Per day Very Good Shri S.K. Dubey Very Good recommended
1996-97 Hon''ble Justice Rewa 6.54 Per day Good
Shri Very Good D.P.S. Chouhan
1997-98 Hon''ble Justice Rewa 5.96 Per day Good Shri D.M. Very Good Dharmadhikari
1998-99 Hon''ble Justice Rewa 5.96 Per day Good Shri S. Dwivedi Very Good
1998-99 Hon''ble Justice Vidisha 5.31 per day Very Good Shri S. Dwivedi Very Good (Granted super time scale)
1999- Hon''ble Justice Vidisha 5.11 Per day Very Good 2000 Shri S. Dwivedi Very Good
2000-01 Hon''ble Jabalpur On deputation Very Good Executive as member Chairman, Shri Secretary in D.P.S. Chouhan M.P.State Legal Services Authority, Jabalpur
2001-02 Hon''ble Jabalpur On Deputation Recommended/ Executive as member Approved for Chairman, Shri Secretary in above time D.P.S. Chouhan M.P.State scale Legal Services Authority, Jabalpur
2002-03 Hon''ble Justice Panna 5.40 Per day Good Shri K.K. Lahoti Very Good
2003-04 Hon''ble Justice Panna 5.29 Per day Very Good Shri N.S. Azad Very Good
By placing Annexure P/4 dated 2.6.1999 on record it has been submitted that the petitioner was granted super time scale with effect from May, 1999. As per the case of petitioner his service tenure was excellent and he was found fit and suitable for being granted super time scale and approved for grant of above super time scale.
According to the petitioner he was also considered and was found suitable and fit for elevation to the Bench of this High Court though he was not senior most in the cadre of District & Sessions Judge. The Chief Justice of the High Court in February, 2004 asked the petitioner to give his consent and declaration which was duly given by him. According to the petitioner with an utter surprise the respondent No. 2 issued an order dated 13th September, 2004 in the name of the Governor on the basis of the recommendation retiring him from service with immediate effect. The said order is Annexure P/1. This order is said to have been passed under Rule 14 of the Madhya Pradesh Higher Judicial Services (Recruitment and Service Conditions) Rules, 1994 (in short ''the Rules of 1994''). This rule provides for compulsory retirement on attaining the age of 58 years. As per the petitioner he has not yet completed the age of 58 years. This order is said to have been passed in public interest whereas considering the performance and service record of the petitioner, no public interest would be served in retiring him compulsorily.
According to the learned senior counsel for the petitioner only for the year ending 1993 and 1994 the Confidential Report of the petitioner were not good which were written simultaneously. According to learned senior counsel these adverse remarks were not based on objective assessment and communicated after long delay hence the petitioner filed one Writ Petition No. 43/96 before this Court for expunging the said adverse remarks and the learned Single Judge vide order dated 18.10.996 allowed the said writ petition. But, the judgment of learned Single Judge was reversed in LPA No. 219/96 filed by the High Court (Annexure R/9). But, it was observed by the LPA Court that the adverse remark should not haunt the petitioner all through his judicial career and hamper his prospects for all times. The Division Bench of this Court further observed that the adverse remark cannot be read to his prejudice in future if he shows improvement in his work and performance and is able to achieve the requisite grades for being admitted to Higher Selection Grade, The LPA Court further observed that the very purpose of communicating adverse remarks is not to condemn an officer but to caution him at the right time so as to give him chance of improvement. Against the order passed in LPA, the petitioner filed SLP before the Supreme Court which was dismissed vide order dated 28.4.1997
It has been further contended in the petition that subsequent to the aforesaid adverse entry of the year 1993 and 1994, the petitioner''s service record and his ACRs have all along been ''Good" and "Very Good" and he has been granted super time scale in the year 1998-99 and further he was approved for above super time scale in the year 2001-2002. According to the petitioner, since in the subsequent ACRs and by allowing Higher Scale, the adverse entry of the year 1993 and 1994 lost its significance and this was also the crux of the judgment of the LPA Court.
The petitioner against the impugned order Annexure P/1 dated 13th September, 2004 retiring him compulsorily, filed writ petition directly to the Supreme Court (Writ Petition No. 588/2004) which was withdrawn by order dated 29.10.2004 (Annexure P/6) with a view to file writ petition before this Court. Thus it has been prayed that by quashing the impugned order of compulsory retirement dated 13.9.2004 (Annexure P-1) this petition be allowed.
Case of respondent No. 1 in return:
Refuting the averments made in the petition, the return has been filed by the High Court (respondent No. 1). According to the pleadings made in the return the services of the petitioner are governed by Rules of 1994. Rule 14 of the above said Rules provides for age of superannuation of members of the service. According to averments made in the return, Sub-rule (2) of Rule 14 speaks for itself and has made applicability of Rule 56(3) of the Fundamental Rules and Rule 42(1)(b) of the M.P. Civil Services (Pension ) Rules 1976 (for brevity ''the Pension Rules'') so far as the members of the Higher Judicial Services are concerned. Thus according to respondents Rule 14 of the Rules is clear In itself that the applicability of Rule 56(3) of the Fundamental Rules and Rule 42(1)(b) of the Pension Rules are not affecting in any way the provisions of Rule 14 to the members of Higher Judicial Service. According to Rule 42(1)(b) of the Pension Rules the appointing authority may in the public interest require a Government servant to retire from service at any time after he has completed 20 years qualifying service or he attains the age of 50 years whichever is earlier with the approval of the State Government.
The stand of respondent No. 1 in the return Is that if the position of law which emerges from bare reading of these provisions is kept in juxtaposition it is revealed that the age of superannuation of members of Higher Judicial Services is 60 years subject to the condition they are found fit and suitable to continue after 58 years in the service and in case of his failing the test and suitability he shall be compulsorily retired on attaining the age of 58 years. Provided that the appointing authority in public interest may retire a Government servant after he has completed 20 years of qualifying service or 50 years of age whichever is earlier with the approval of the State Government. Thus, according to respondent No. 1, the contention of the petitioner that he has statutory right to continue in service till the age of 60 years is misplaced, misconceived and not tenable in law. The provisions of Rule 42(1) of the Pension Rules have been specifically made applicable to the members of the higher judicial service and if that is the position the petitioner can be retired on completing 20 years of his service or 50 years of age whichever is earlier. Since the requisite notice of three months was not given to him, three months salary in advance in lieu of notice was given to the petitioner.
The stand of the respondent No. 1 is that the overall service record of the petitioner in his service was not in the public interest.
In the return it has been emphatically denied that the petitioner was having an excellent service record. According to the respondent right from beginning, his record had been below average. For the year 31.3.1982 he was graded "D" and adverse remarks was duly communicated to him on 15.9.1982. For the year 1982-83, 1983-84, 1985-86, 1986-87, 1987-88 the petitioner was graded "C". For the year 1988-89 petitioner''s ACR grading was "D" (average) and these adverse remarks were also communicated to him on 6.11.1989 (Annexure R/2). In the year 1991 he was recorded as an average Judicial Officer and in the year 1992 he was again graded ''D" In view of poor disposal and several complaints being made against him. Because of his bad record, consideration of his case for Higher Scale Grade was deferred in the year 1992. In that regard copy of the minutes of the Court meeting held on 2/3-5-1992 has been placed on record as Annexure R/3. In the year 1993 the petitioner was awarded "E" by the Chief Justice and as his performance was extremely poor and his disposal was below average his case for grant of HSG was again deferred In the year 1993 and in that regard the minutes of the Court meeting held on 3rd April, 1993 and 1st and 2nd May, 1993 Annexure R/4 has been placed on record. In the year 1994 the petitioner was again graded "E" by the Hon''ble Chief Justice with the specific remark that he is not enjoying good reputation. All these adverse entries were duly communicated to the petitioner vide Annexure R/5 and R/6 dated 4th/1th May 1994 (Annexure R/6). In the year 1994 a Full Court meeting of the High Court resolved that the petitioner was not eligible for being given the benefit of HSG (Annexure R/7).
Thereafter the petitioner In order to bring pressure got a letter written by Shri R.K. Malviya, Member of Parliament and Chairman Housing Committee addressed to Shri H.R. Bharadwaj, Minister of State for Law, Justice and Company Affairs for considering the review petition of the petitioner with regard to ACR for the year ending 1993-94. This act of the petitioner is almost unbecoming of a judicial officer, copy of the said letter dated 14th February, 1996 has been placed on record as annexure R/8. The representation of the petitioner was rejected by Hon''ble Chief Justice for expunging the adverse remarks. Against the rejection of the representation for quashment the adverse remarks and grade for the year 1993 and 1994 the petitioner filed a writ petition and since he had filed the writ petition, the request of the petitioner for review was not considered as the matter was subjudice. The writ petition of the petitioner (W.P. No. 413/96) was allowed on 18.0.1996 against which the High Court filed LPA No. 219/96 which was allowed vide order dated 25.2.1997 and the order passed in the writ petition was set aside. The order of the LPA (Annexure R/9) was assailed by the petitioner by filing SLP before the Supreme Court which was dismissed on 28.4.1997.
The case of the petitioner for allowing the benefit of super time scale was considered in the Full Court meeting dated 25.3.1995 (Annexur R/10) and it as resolved that he is ineligible since he is not of the requisite grade. The case of the petitioner for grant of admission to the benefit of super time scale was deferred with the remarks ''his work, performance and conduct will be kept under the watch'' in that regard the meeting of the Administrative Committee No. 1 dated 25.4.1995 which was accepted by the Full Court of the High Court in its meeting dated 29.4.1995. The petitioner was not found suitable for grant of STS in the court meeting dated 20/21.4.1996 (Annexure R/12). The petitioner was graded "D" by the portfolio Judge for the year ending 31.3.997, Later on, on his representation he was graded "C" but adverse remarks were not expunged and representation was rejected. Vide annexure R/13 dated 31.3.1998 the adverse remarks were communicated to the petitioner against which he submitted representation which was duly considered and rejected. The case of petitioner for grant of super time scale was considered in the court meeting dated 20/21.4.1996 and it was resolved that since he was not in super time scale he was held ineligible for consideration of grant of above super time scale. He was found suitable for grant of above super time scale in the Full Court meeting dated 7.4.2002. The petitioner was also issued D.O. No. 167 dated 27.7.2002 for his poor disposal. The portfolio Judge graded "D" to him for the year ending 3.12.2002.
In the return it has also been setforth that preliminary enquiry was initiated against the petitioner in regard to avoiding of reservation policy In the appointment of employees in the court, leaving headquarters unauthorizedly without leave and he visited Allahabad unauthorizedly by using official car without obtaining prior permission from the High Court, The matter was placed before the Administrative Committee of the High Court In its meeting and it was resolved that the matter regarding departmental enquiry be dropped. In that regard Annexure R/15, which are the minutes of the Administrative Committee, has been placed on record. The petitioner was also warned by the Chief Justice for giving false statement regarding leave and claiming false units. In that regard Annexure R/16 has been placed on record.
In the return, it has been further pleaded that the petitioner cannot get benefit on the basis of the fact that his name was forwarded for his elevation to the Bench. The contention of the petitioner In that regard that his name was considered and he was found suitable for elevation to the Bench of the High Court because his service record was excellent, is incorrect. It has also been setforth in the return that the communication was received from the Law Ministry requesting that the candidates belonging to the scheduled castes/ scheduled tribes should be appointed to the High Court was erroneously construed by the then Chief Justice and even though the petitioner was figured as 10 in the seniority list, without considering the persons above him and without considering his service record, his name was considered for his elevation to the Bench. The stand of the respondent No. 1 is that the matter of compulsory retirement of petitioner was as per provisions of law and was taken into consideration in a Full Court meeting of High Court and after going through the petitioner''s entire record and as per the revised guidelines of the State government dated 22.8.2000, his case was thoroughly scrutinized and on scrutiny the Full Court found that the petitioner''s continuance in service would not be in public interest and therefore the Full Court recommended his case for compulsory retirement which was accepted by the State Government accordingly and issued the impugned letter of compulsory retirement dated 13.9.2004 (Annexure P/1), On the basis of these submissions in the return It has been submitted that this petition be dismissed.
Rejoinder of petitioner:
The petitioner filed rejoinder and refuted the averments made in the return. It has been specifically denied that as per perusal of Annexure R/1 one should not say that the petitioner was graded "D" for the year 31.3.1982. Neither any document showing that he was graded "D" has been filed nor petitioner was so intimated. It has further been submitted that the petitioner has not been communicated Grade "C" for the periods 1982-83, 1983-84, 1985-86, 1986-87 and 1987-88 as mentioned in para 8 of the return. In any case, under any circumstances, grading of "C" can not be stretched up to the extent of remark of adverse. Grade "C" is good.
The petitioner was promoted to the District Judge in January, 1989. He was also awarded lower selection grade on 7.9.1990 with effect from 24.3.1989. The adverse remarks mentioned in Annexure R/2 were infact influenced by personal bias and tainted with malice inasmuch as the then District Judge, Dewas had developed a peculiar hostility against the petitioner and was highly prejudiced owing to her rigid and vindictive temperament. The petitioner though submitted representation against the same (Annexure A/1) but unfortunately the same was not considered but the said remark was paled into significance in the teeth of the fact that not only the petitioner was promoted later on as District Judge in January, 1989 but also awarded lower selection grade with effect from 24,3.1989 (Annexure A/2). The disposal of the petitioner was very good as per prescribed standard and it was not poor. The statement of work done for the period 1.4.1991 to 31.3.1992 has been filed as Annexure A/3. It has also been denied that there were several complaints and even if there were any complaint the same were never communicated to him nor he was afforded any opportunity to make any statement in response to those complaints. The grading "D" for the year 1991-92 was never communicated to the petitioner nor the same has been filed with the return. It has been denied that on account of alleged bad record, his case for HSG was deferred In the year 1992, According to the petitioner, since he was not having two "B" grades in the preceding five years which was a pre-requisite condition to provide the said grade, the issue was postponed and not deferred.
The adverse remarks awarded in the year 1993-94 were based on a single report of the portfolio Judge against which the petitioner filed writ petition which was allowed but the order was reversed in the LPA and the order of the LPA court speaks for itself that the adverse remark cannot be read to the petitioner''s prejudice in future if he shows improvement in his work and performance and is able to achieve requisite grade for being admitted to HSG. The LPA court further observed that the very purpose of communicating adverse remarks is not to condemn an officer but to caution him at the right time so as to give him chance to improve. Later on in the year 1999 the petitioner was awarded HSG in May 1999.no sooner the two grades "B" were available in his confidential role in the preceding five years for awarding HSG. It has been putforth in the rejoinder that the performance of the petitioner in the year 1993 was 19,6% criminal and 96% civil while the disposal in the year 1994 was 218% criminal and 75% civil, thus the total 293% was achieved. In that regard the statement of work done for both the years has been filed as Annexure A/5 and A/6 which as per recognized standards prescribed by the High Court are "Very Good".
The petitioner emphatically denied the averments in the return on the ground that they are factually Incorrect that he ever made any representation to Shri R.K. Malviya, Member of Parliament or Shri H.R. Bhardwaj, Minister of State of Law for consideration of review petition filed by him. It has been stated in the rejoinder that the respondents have not filed any copy of the representation as alleged by them.
In regard to the averments made in the return in respect to the Court meeting dated 24.4.1995, 25.4.1995 and 20/21.4.1996 with reference to consideration of super time scale, it has been submitted that on account of nonavailability of requisite number of grades, award of the aforesaid pay-scales was deferred but it was not on account of any adverse remarks or performance of the petitioner. According to the petitioner during the said period his performance as -per the standards prescribed by the High Court was above average, The petitioner has filed the statement of work done for the period 1995 as Annexure A/7. It has been emphatically denied that the remarks of the year 1997 were not expunged and his representation was rejected, In fact the petitioner''s representation dated 17.12.1999 (Annexure A/8) was duly considered and the same was allowed. Resultantly in place of grade "D", the petitioner was awarded grade "C". Copy of the communication dated 17.1.2000 has been filed by the petitioner as annexure A/9. As regards alleged adverse remarks in the year ending 1998 regarding disposal of civil suits the petitioner has submitted that a representation stating that on account of sudden illness, hospitalization and sudden demise of his father in February, 1998, he had to proceed on leave being the eldest son in order to perform all the last rites and other ceremonies. Therefore due to his mental agony and disturbance In the family he could not dispose of the required number of civil suits. Copy of the representation has been filed on record as Annexure A/10. It has also been putforth that In the very next month i.e. in April, 1998 the petitioner decided 7 civil suits and in that regard he has filed the chart of disposal Annexure A/11. Further more statement of work done from 1.3.1997 to 28.2.1998 (Annexure A/12) shows earning of 1115 units on an average 5.96 units per day and it is very good as per the standard prescribed by the High Court.
The petitioner was allowed super time scale vide order dated 2.6,1999 with effect from 8.5.1999, further he was awarded above super time scale in the Full court meeting held on 27.4.2002. Prior to his posting at Panna the petitioner was on deputation as Member Secretary, State Legal Services Authority, Jabalpur and he was transferred in May, 2002 even then the total units earned were 66 for 14 working days an average of 5.40 units per day and assessed as very good as per the standards fixed by the High Court. It has been denied that the petitioner was graded "D" for the year ending 3.12.2002. Neither the said document is annexed with the return nor has been communicated to the petitioner.
By replying the averments made in para 11 of the return, It has been stated in the rejoinder that the petitioner was not on unauthorized leave from 27th to 29th November, 1996 and he had explained the situation in his explanation that he was on casual leave on 27th and 28th November, 1996 and he worked on 29th November, 1996. The explanation was sought with reference to one Ran Sakha an S.C. candidate, in preference to the other employees. In the official communication it was explained that the promotional benefit was accorded to the employee strictly in accordance with the reservation policy of the State Government and relevant circular. The petitioner''s explanation was found satisfactory as a result of which the enquiry was dropped. It has also been denied that the petitioner ever gave any false statement regarding leave and claiming false unit nor it is correct that the Hon''ble Chief. Justice issued any warning to the petitioner. According to the petitioner, by mistake 8 days'' medical leave was typed in the revised statement and later on it was made clear vide Annexure A/16 dated 22.10.2003 that no such leave was taken and the same was closed. The petitioner was communicated the decision on his explanation vide DO letter No. 1620 dated 22.10.2003 whereby he was advised that such error may not be repeated.
In reply to the averments made in para 12 of the return, it has been contended in the rejoinder that the petitioner''s entire service record was thoroughly scrutinized. According to the petitioner, in fact, there was no consideration at all of petitioner''s service record. The decision was taken in a slip-shod manner and in hot haste and the decision is totally dehors the record and unsustainable in the eyes of law looking to the parameters and standard laid down by the Supreme Court. The petitioner has also filed copy of the revised guidelines dated 22.8.2000 (Annexure A/7) which has been placed reliance in the return and on the basis of which the impugned order has been issued. As per these guidelines the case is required to be scrutinized by a Screening Committee for the purpose of making consideration of entire service profile of the petitioner. It has been specifically pleaded in the rejoinder that the matter -was not at all placed before the Screening Committee which was absolutely necessary, as such the actual relevant facts were not considered by the Full Court. It has also been putforlth in the rejoinder that as per the revised guidelines after every two years interval, assessment through the Screening Committee is to be done in order to evaluate the overall service record for the purpose of consideration of compulsory retirement. In the present case the complete procedure has been bypassed by the full Court and an arbitrary decision has been taken.
In replying to the averments made in para 13 of the return it has been contended in the rejoinder that the issue of compulsory retirement of the petitioner was not even in the agenda of the Full Court meeting which would mean that the service record of the petitioner was never assessed at the time of full court meeting and all of a sudden the decision has been taken in arbitrary manner to retire the petitioner compulsorily by complete bypassing the revised guidelines required to be adhered for compulsorily retiring a public servant.
25(a). It has been submitted by Shri Rohit Arya, learned senior counsel for the petitioner that in view of the decision of the Supreme Court in the case of State of Gujarat Vs. Umedbhai M. Patel, the law relating to compulsory retirement has been crystallized into definite principles which are summarized in para 11 of the said decision. According to learned Counsel the order of compulsory retirement cannot be passed as a short cut to avoid departmental enquiry when such course is more desirable and if the officer has given a promotion despite adverse entries made In the confidential record, this is a fact in favour of the officer. According to learned Counsel if the entire service profile of petitioner is taken into consideration, the impugned order of compulsory, retirement is nothing but is ex facie punitive action. It has also been putforth by learned Counsel that individual integrity, performance, efficiency are required to be guided in reference to actual performance and material available on record. The total action of compulsory retirement cannot be rested only, on the grades in the ACR, According to learned Counsel the assessment was mandatory required to be done by the Screening Committee, but, the case of petitioner was never forwarded to the Screening Committee and on the recommendation of the Screening Committee the decision was required to be taken by the Full Court. By inviting my attention to the impugned order it has been propounded by learned senior counsel that the Impugned order does not show that the action was bona fide, rational or on the basis of the material placed. Unless and until all these essential ingredients are there, the action and the order retiring petitioner compulsorily tantamount to termination and if that is the position, the action is in contravention to Articles 14 and 16 of the Constitution of India. He has invited my attention to the decision of the Supreme Court Baldev Raj Chadha Vs. Union of India (UOI) and Others, . By putting emphasis on the decision of Registrar, Registrar, High Court of Madras Vs. R. Rajiah, , it has been contended that the purpose of constituting the Screening Committee is having some meaning because the said Committee after X-raying the entire service record is required to submit its recommendation to the Full court. By placing reliance on the decision of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, , it has been submitted that though the principle of natural justice has no role to play in the context of an order of retirement but it would not mean that judicial scrutiny is excluded altogether and this Court can interfere in the matter of compulsory retirement if the order is passed on account of malafide or is based on no evidence or it is arbitrary. By explaining the term arbitrary in the context it has been argued that the word arbitrary should be stretched to the extent that no reasonable person would digest from the requisite opinion on the given material.
25(b). By inviting my attention to the decision of Supreme Court High Court of Punjab and Haryana Through R.G. Vs. Ishwar Chand Jain and Another, , it has been argued that the guidelines for inspection the lower judiciary is laid down and the ill conceived or motivated complaints as well as rumour mongering is to be avoided at all costs-as it seriously jeopardize the efficient work of the subordinate court.
25(c) It has been contended that the work of petitioner and the quality of his judgment was appreciated even by the Apex Court and in that regard he has invited my attention to the decision of Jai Kumar v. State of M.P. 1999 (2) LLJ 68 wherein the Supreme Court in para 18 of its judgment has appreciated the decision given by the petitioner. Para 18 reads thus:
The order of the learned Sessions Judge as recorded above unmistakably depicts that both the parties were heard and none of the parties wanted to give any documentary or oral evidence with regard to sentence. But the factum of submissions and considerations thereof as appears from paragraphs 27 and 28 leads us to a definite conclusion that there has been no miscarriage of justice. Be it noted that the statute has engrafted in the statute book the provisions of Sections 235(2) so as to see that proper appreciation of the evidence takes place and proper opportunity of hearing as regards punishment be afforded, but if there is no taker of such an opportunity inspite of there being layers appearing for the accused as well, question of further adjournment of the matter would not arise. It is true that the obligation is not discharged by putting formal questions to the accused. The Judge is supposed to elicit materials from the accused which will have a bearing on the question of sentence and it is on this requirement of law, let us consider as to whether there was in fact such a genuine attempt to elicit materials but as the record depicts there was no taker of this opportunity and the defence lawyer pleaded two facts to be considered in the matter for award of punishment viz. (a) the accused is aged 22 years and (b) No other past Criminal Record. We wish to put on record that trying Judge has shown utmost concern and after much deliberation came to the conclusion as above in the matter of the grant of punishment. The ratio dicedendi of the cases noticed is to see that there is no statutory mockery resulting in a total miscarriage of justice. The judgment was adjourned and the lawyer was asked and prompt came the reply that the sentence ought to be considered by reason of the age and no past record: Both these aspects have duly been considered by the Sessions Judge and we do not see any infirmity therein.
By inviting my attention to the service profile of the petitioner it has been argued that the petitioner was appointed directly on the post of Additional District Judge in October, 1979 and thereafter he was confirmed on the post of District Judge in May, 1985. In January, 1989 the petitioner was given Independent charge, In January, 1989 he was given independent posting as District Judge. In June, 1990 Lower Selection Grade was allowed to him. In May 1999 Super Time Scale (Higher Selection Grade) was granted and In April, 2002 he was benefited by above Super Time Scale.
It has been further contended by learned senior counsel that two entries year ending 1993 and 1994 the petitioner, was graded with "E" but thereafter in May, 1999 vide Annexure P/4 Super time Scale was allowed to the petitioner. It has also been argued that the ACR of 1982 was not adverse to the petitioner. Even if it is held to be adverse, the same was never communicated to the petitioner. In this regard by inviting my attention to annexure R/1 dated 15.9.1982 which is communicated to the petitioner it is contended that the same cannot be stretched to the extent to hold it to be adverse ACR, but, as a matter of fact it is only advisory. By inviting my attention to Annexure R/2 dated 6th November, 1992 filed along with the return of the High Court, it has been submitted that though vide D.O. letter No. 1634 the confidential report of the year 1989 was communicated to him but later on immediately he was benefited by Lower Selection Grade on 7.9.1990 with effect from retrospective effect i.e. 4.3.1989. In regard to annexure R/2 the adverse ACR dated 6th November, 1989 it has been argued that the petitioner submitted representation but the same was not considered by the Full Court held on 2nd and 3rd May, 1992 and it was resolved that it is not necessary to expunge the adverse remarks from the confidential report. According to learned senior counsel, this was resolved because petitioner was benefited by Lower Selection Grade on 7.9.1990 with effect from 4.3.1989 and therefore it was found to be not necessary to consider the representation. Thus, it cannot be said that the representation was rejected.
By inviting my attention to the judgment of LPA court Annexure R-9 filed along with the return it has been submitted that though the Letter Patent Appeal was allowed but it was observed in para 69 that the adverse remark cannot be read to prejudice the petitioner in future if he shows improvement in his work and performance. Since the petitioner was benefited by Super Time Scale (Higher Selection Grade) in May, 1999 (Annexure P/4) the adverse remark of the year ending 1993 and 1994 lost its significance.
My attention has also been drawn by learned senior counsel on the decision of Nawal Singh Vs. State of U.P. and Another, In which the Supreme Court by following its earlier decision Baikuntha Nath Das (supra) again reiterated the same principle in regard to retire a judicial officer compulsorily. By citing the decision of Madan Mohan Choudhary Vs. The State of Bihar, , it has been argued that the principle enumerated in the decision of Baikuntha Nath Pas (supra) was again followed by the Supreme Court.
The learned senior counsel for the petitioner by inviting my attention to para 12 of the return has submitted that the impugned order of compulsory retirement is based on the guidelines of the State Government dated 22.8.2000. The said guideline of the State Government has been placed on record along with the rejoinder as Annexure A/17 but the norms which were fixed in the guidelines of the State Government were never taken into consideration and dehors to those norms the impugned order of compulsory retirement has been passed. Under the said guidelines the case of the employee who has completed 50 years of his age or 20 years of his service has to be scrutinized and thereafter the next scanning should be made after two years. The case of the petitioner was never scrutinized by any Committee. In that regard my attention has been drawn to Clause 3, 9 and 1 of the guidelines of the State Government.
By inviting my attention to another decision of the Supreme Court J.D. Srivastava Vs. State of M.P. and Others, it has been argued that since after giving adverse remark of the ACR to the year ending 1993 and 1994, the petitioner was provided Higher Selection Grade in May, 1999 and above Super time Scale in April, 2002, therefore, the said adverse ACR cannot be made pivot to retire petitioner compulsorily.
Mrs. Shobha Menon, learned senior counsel appearing for respondent No. 1 has submitted that the order of compulsory retirement should be scanned under the pretext, ambit and scope of Article 235 of the Constitution of India which speaks about Power of High Court to control over subordinate Courts. In support of her contention, she has placed reliance on Tej Pal Singh Vs. State of U.P. and Another, , R. Rajiah (supra), Chandra Singh Vs. State of Rajasthan and Another, and Nawal SINGH (supra) . By inviting my attention to the impugned order Annexure P/1 (translated, copy Annexure P/5) it has been submitted by learned senior counsel that the decision to retire petitioner compulsorily was taken in the Full Court meeting. It has been further contended by her that the nature and duties of the judicial officer are not at par with other ordinary Government servants and the same Is on higher footing wherein the integrity and honesty is the integral part. By Inviting my attention to the averments made in the return, it has been submitted that the Full Court in its meeting held on 11th September, 2004 after scanning the entire service record of the petitioner and also as per the revised guideline of the State Government dated 22.8.2000 came to hold that after giving due consideration on the entire service and all the materials in the public interest a decision was taken to retire petitioner compulsorily and therefore merely because the name of petitioner at one point of time was forwarded for his elevation to the Bench of this Court cannot be stretched to the extent that his service record was excellent and therefore arbitrarily, malafidely or against the norms he was retired compulsorily.
It has been further argued by Mrs. Menon, learned senior counsel that year ending 1982 the petitioner was graded "D" which would mean average, 1983 to 1988 "C" i.e. Good was given to him. In the year 1988-89 the petitioner was graded "D", in the year 1991-92 "D", 1993 and 1994 "E". The entry of the years 1993-1994 was assailed by the petitioner by filing writ petition which was allowed by the Single Bench but later on the decision was reversed in LPA. In 1997 petitioner was graded "D", 1998 there was adverse communications to him and in the year 2002 he was graded "D". By inviting my attention to note sheet Annexure R/15 it has been submitted that the official vehicle was used by the petitioner for his personal use and by that vehicle he visited to Allahabad and therefore the order of compulsory retirement cannot be said to be arbitrary, malafide or dehors to the rules. In support of her contention learned Counsel has placed reliance on the decision of Umedbhai M. Patel Supra) and a recent decision of the Supreme Court Shiv Dayal Gupta v. State of Rajasthan and Anr. AIR 2006 SCW 43. Bishwanath Prasad Singh v. State of Bihar and Ors. (2001) 2 SCC 305 The State of Punjab Vs. Gurdas Singh, , State of U.P. and Ors. v. Vijay Kumar Jain (2002) 3 SCC 64, Jugal Chandra Saikia Vs. State of Assam and Another, and State of Gujarat and Anr. v. Suryakant Chunilal Shah (1999) 1 SCC 529.
Heard learned Counsel for the parties and perused the record of respondent No. 1 which was submitted during the course or argument. After having heard learned Counsel for the parties. I am of the view that this petition deserves to be allowed.
33.A The relevant rules, i,e, Rule 14 of Rules of 1994, Rule 42(b) of the Pension Rules are quoted in the return, they are perused as well as FR 56 is also , perused. Apart from this, since the Impugned order as well as the stand of respondent No. 1 is also based on the guidelines of the State Government dated 22.8.2000 (Annexure A/17) giving directions what should be the tests to retire compulsorily a Government servant, those guidelines are also perused minutely and particularly Clause 1, 3 and 9.
There is no dispute to the proposition that the High Court is having control over District Court and Courts subordinate thereto. In that regard Article 235 of the Constitution, of India is quite clear. The matter pertaining to premature retirement of Judges of District Courts and of subordinate Courts is a matter which falls squarely within the power and control vested In the High Court by virtue of Article 235 of the Constitution of India. Without the recommendation of the High Court it is not open to the Government to issue an order retiring prematurely District Judge. In this context the decision of Tej Pal Singh (supra) may be seen. The same principle has been again reiterated in the decision of R. Rajiah (supra) in the case of Chandra Singh (supra) the Supreme Court while considering the scope of Article 235 of the Constitution of India has held that this Article enables the High Court to assess the performance of any judicial officer at any time with a view to discipline the blacksheep or weed out the deadwood and this Constitutional power of the High Court cannot be circumscribed by any rule or order, In the case of Nawal Singh (supra) the Supreme Court held that the judicial service is not a service in the sense of an employment. Judges are discharging their functions while exercising the sovereign judicial power of the State, their honesty and integrity is expected to be beyond doubt and it should be reflected in their overall reputation. It was further observed that the nature of judicial service is such that it cannot afford to suffer continuance in service of a person of doubtful integrity or who have lost their utility. In para 6 of this decision, it has been again held by the Supreme Court that the object of compulsory retirement is to weed out the dead wood in order to maintain a high standard of efficiency and honesty and to keep the judicial service unpolluted. Thus It Is luminously clear that Article 235 of the Constitution empowers the High Court to take a decision to retire officers of doubtful integrity which would depend upon an overall Impression by the higher officers as it is important to prove by positive evidence that a particular officer is -dishonest. In the case of State of U.P. and Another Vs. Lalsa Ram, the Supreme Court held that whether the conduct of the employee is such as to justify a conclusion of compulsory retirement but the same is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement, the Courts have no authority or jurisdiction to interfere with the exercise of power if arrived at bona fide on the basis of the material available on record: Usurpation of authority is not only unwarranted but contrary to all norms of service jurisprudence.
In the case of Shiv Dayal Gupta (supra) the Supreme Court on the basis of the discussion made in para 2 and 3 of the said decision came to hold that the order of compulsory retirement was in the public interest. In the case of Bishwanath Prasad Singh (supra), the Supreme Court declined to exercise the powers conferred to it under Article 32 of the Constitution of India.It was further held that no right much less any fundamental rights is In the petitioner to continue in service beyond the age of 58 years which is the age of retirement of a judicial officer in the State of Bihar.
There is no dispute to the proposition and the law laid down by the Supreme Court in the aforesaid decisions. Indeed, learned senior counsel appearing for the petitioner also did not dispute the proposition which has been laid down by the Supreme Court In all above said cases. But, the question is whether in the present factual scenario the ratio decidendi laid down by the Supreme Court is applicable.
The record of confidential file containing the confidential report of the petitioner which has been submitted by respondent No. 1 is considered and in the following manner the petitioner has been graded:
Year Remark about reputation of Integrity and Grade impartiality
17.10.1979 to No complaint "C-Good" 31.3.1980
Year ending Nothing has been mentioned No remark is 31.3.1981 given by the District Judge. It has been mentioned that the petitioner has been transferred from Shajapur.
1981-82 No adverse remark "D-Average"
1982-83 No adverse remark "C-Good"
1983-84 Nothing adverse heard "C-Good"
For the period Nothing adverse "C-Good" 1985-86 Note: There is a note of the then Chief Justice dated 19.10.1985 in regard to confidential report for the period ending 31st March, 1985 that the Brother Judge who inspected his work found his work and conduct to be good. Nothing is heard against him about his integrity.
1986-87 Nothing adverse "C-Good"
1987-88 Nothing heard against his integrity "C-Good"
1988-89 No such complaint was received in writing "D-Average" but he never enjoyed clean reputation
For the period The descriptive report of the then Chief No grade ending 31st Justice dated 16.4.1990 is that according to was given. March, 1990 the Inspecting Judge petitioner is a sound, intelligent and hard working judicial officer. His relations with the Bar are cordial. There is no reason to doubt his integrity.
For the period The descriptive report of the then Chief "C" ending 31st Justice dated 28.6.1991 is that no inspection March, 1991 of Betul District Judge was made. However, the petitioner was reported to be an average judicial officer.
For the period The descriptive report of the then Chief Grade "D" ending 31st Justice dated 14.8.992 is that according to was given. March, 1992 the learned brother who inspected the Court of petitioner although there were number of complaints against him, nothing was found against Shri Chandel. Nothing has been said about his integrity and relations with the Bar.
For the period The descriptive report of the then Chief Grade "E" ending Justice dated 28.7.1994 is that Inspection 31.3.1993 note shows that the quality of performance was given. of petitioner is poor. His disposals were below average, His reputation was not good.
For the period The descriptive report of the then Chief Grade "E" ending Justice dated 28.7.1994 is that the Average 31.3.1994 performance of petitioner qualitatively and quantitatively has been poor. The officer does not enjoy good reputation.
1994-95 The then Chief Justice after overall ''C'' consideration assessed petitioner "C" on 7.8.1995.
1995-96 Portfolio Judge made a note that the "C Good" members of the Bar at Rewa had all appreciation for petitioner. No one complained against his work, conduct and integrity. Though the Portfolio Judge graded the petitioner category "E" but the then Chief Justice graded him "C" Good.
For the period Though the portfolio Judge graded "D- "C Good" ending 28th Average" but the Acting Chief Justice vide February, 1997 order dated 14.1.2000 modified Grade "D" to as Grade "C" on being represented by the petitioner. A note of the then Acting Chief Justice dated 14.1.2000 is also seen and it is found that the Chief Justice found quality of work of petitioner to be good and the representation of the petitioner against his remarks grading him average, was allowed and he was graded "C" in place of "D"
For the period Nothing was found against his reputation "C-Good" ending 28th and character. For integrity it has been February, 1998 mentioned by the portfolio Judge that nothing was heard against him.
Year ending Nothing adverse was found in regard to "C-Good'' 28th February, integrity. The portfolio Judge made a remark 1999 that the office administration of petitioner is very good.
1st March, 1999 The integrity was found beyond doubt, The "B-Very to 29th remark of portfolio Judge is that his tenure Good" February, 2000 has been smooth, no complaint against him was received. He has taken much pains'' in maintaining the dignity of office of District Judge. His overall performance, on Judicial as well as administration site is up to the mark.
Period ending During the year 2000-2001 the petitioner March 2001 was Member Secretary of M.P.State Legal Service Authority. The Executive Chairman of the Legal Service Authority made a note in the annual confidential report of the petitioner that the Supreme Court in the decision of Jai Kumar v. State of Madhya Pradesh 1999 (2) LLJ 68, at the page 76 appreciated the work and the quality of the judgment of the petitioner. It has been mentioned by the Supreme Court that "we wish to put on record that Trying Judge has shown utmost concern and after much deliberation came to the conclusion as above in the matter of grant of punishment". In this case the capital punishment which was given by the petitioner was affirmed by the Supreme Court.
1.1.2001-- During this period the petitioner was serving "B" Very 13.12.2001 as Member Secretary of State Legal Service Authority. Good
Year ending Nothing adverse against him was found "D-Average" 31.12.2002 about the integrity. But complaint was made was given by by one Advocate. the Portfolio Judge but the Chief Justice converted it to "C-Good" on 5.5.2003.
Year ending The Portfolio Judge made the remark that "C-Good" December, the petitioner is an honest Judge. No 2003 complaint is received since he is posted at Panna.
On bare perusal of the confidential report filed by the petitioner throughout it is found that either he was graded "B-Very Good", "C-Good" or "D-Average", except for the period ending 31.3.1993 and 31.3.1994 when he was graded "E". Against these two adverse ACR he submitted representation but the same was rejected and ultimately he filed writ petition before this Court which was allowed by the Single Bench but the decision was reversed in LPA by the Division Bench. Though the Letter Patent Appeal was allowed but it was categorically held in para 69 that:
Before parting with this case, in all fairness, we consider it necessary to observe that the adverse remark on the reputation of respondent conveyed to him in the relevant years should not haunt him all through his judicial career and hamper his prospects for all times. The above remark cannot be read to his prejudice in future if he shows improvement in his work and performance and is , able to achieve the requisite grades for being admitted to Higher Selection Grade. The very purpose of communicating adverse remarks "is not to condemn an officer but to caution him at the right time so as to give him chance of improvement.
(emphasis supplied)
Thus, the judicial mandate which has been given, clearly indicates that the adverse grading of the petitioner is not to hamper his prospects for all times. It was further directed that the adverse remark of the year 31.3.993 and 31.3.1994 cannot be read to prejudice him in future if he shows improvement in his work and performance. The LPA Court further held that the purpose of communicating adverse remark is not to condemn an officer but to caution him at the right time so that he may be given chance for his improvement.
The purpose of quoting the above said entire service profile of the petitioner is that thereafter every year the petitioner improved himself and in the year 1994-95 he was graded "C-Good", 1995-96 "C-Good", in the year 1997 "D-Average" which was modified and substituted by grade "C" by Acting Chief Justice, year ending 28th February 1998 "C-Good", 1st March, 1999 to 29th February 2.000 "B" Very Good, March 2001 when he was serving as Member Secretary M.P. State Legal Service Authority, the Executive Chairman of the State Legal Service Authority gave him "B-Very Good" and the appreciation of his work and the quality of the judgment was acknowledged by the Supreme Court in the case of Jai Kumar (supra). Para 18 of the decision of the Supreme Court has already been quoted hereinabove, 2001-2002 again he was graded "B-Very Good". For the period ending 31.12.2002 the Portfolio Judge graded "D", but, he was graded "C Good" by the Chief Justice on 5.5.2003 and lastly, period ending December, 2003 he was graded "C Good".
This Court fails to understand that why in para 10 of the return it has been mentioned by the respondent No. 1 that for the year ending 31.2.2002 the petitioner was graded "D" by the Portfolio Judge, when the gradation "D" was superseded and modified to "C" by the Chief Justice on 5.5.2003.True the Portfolio Judge graded "D" for the period ending 3.12.2002 but the grading "D" was superseded and modified to grade "C" by the Chief Justice vide order dated 5.5.2003. In all fairness this fact should have been mentioned in the return. If any person would read para 10 of the return an impression will be given to him that for year ending 31.12.2002 the petitioner was graded "D". If the ACR folder of the year ending 3.12.2002 is put before that person he could easily say that the statement made in the return is confusing and it is factually incorrect because the Chief Justice graded petitioner "C-Good" on 5.5.2003.
That portion of para 8 of the return wherein the reference of ACR of the year ending 1991 has been pleaded by the respondent is quite confusing. It would be condign to quote the same.
In the year 1991 he was recorded as average judicial officer.
Though it was so mentioned in the confidential report of the year ending 31st March, 1991 that the petitioner is reported to be an average judicial officer. But he was graded with "C" which would mean "Good". In all fairness this ought to have been mentioned in the return that the petitioner was graded "C" though he was found to be an average judicial officer. If the original confidential report from the confidential file of the petitioner would not have been seen, a clear impression would have gone that since the petitioner was reported to be average judicial officer, it would mean that he was graded "D". In fact, this is factually incorrect since he was graded "C". Why the facts are twisted in the return, this Court is unable to understand. Similarly, it should have also been mentioned that for the year ending 31st March, 1991, no Inspection of Betul district was made since it is very much mentioned in the confidential report.
After the decision of above said LPA, every year the petitioner has demonstrated his better working as a result of which he was accordingly graded either "B-Very Good or "C-Good" and thus the adverse remarks for the period ending 31.3.1993 and 31.3.1994, has been diluted up to great extent, if not lost its significance in its entirety.
So far as the reputation and integrity and impartiality of petitioner is concerned in the middle column of paragraph 37, I have quoted the entire service period of the petitioner and the remarks given to him are also mentioned therein. The purpose of making the chart in para 37 is that at a glance one could understand that what is the integrity and reputation of the petitioner throughout his service career and how he was graded. For ready reference it can be said that in the year 1979 to 1980 there was no complaint about the integrity, 1981 nothing has been mentioned. 1981-82 no adverse remark, 1982-83 no adverse remark, 1983-84 nothing adverse heard, 1985-86 nothing was heard against the petitioner about his integrity, 1986-87 nothing adverse, 1987-88 nothing heard against his integrity, 1988-89 no complaint was received in writing but there is a note that the petitioner never enjoyed clean reputation, for the period ending 31st March, 1990 the integrity was not found to be adverse. For the period ending 31st March, 1991 there was no inspection for the year, but, the petitioner was found to be average judicial officer, for the period ending 31st March, 1992 though there was complaint against the petitioner but nothing was found against him. Nothing was said about the integrity, for the period ending 31.3.993 the reputation was not found to be good, the period ending 31.3.1994 it was found that the petitioner does not enjoy good reputation.
At the cost of repetition, I would not like to hesitate to mention here again that for the period ending 31.3.1993 and 1994 the judgment of the LPA Court para 69 speaks for itself which I have already discussed hereinabove and thereafter the petitioner improved and demonstrated his good performance and reputation in the subsequent years. For the period 1994-95 the then Chief Justice on account of overall performance and consideration assessed petitioner "C Good" on 7.8.1995, 1995-96 no complaint against the work conduct and integrity. Period ending 28th February, 1997 no complaint received in regard to the integrity, for the period ending 1998 nothing was heard against the petitioner so far as integrity is concerned. For the period ending February, 1999 nothing adverse was found nor heard about the integrity of the petitioner. For the period 1.3.1999 - 29th February, 2000 integrity was found to be beyond doubt, year ending March, 2000 the petitioner was serving as Member Secretary State Legal Service Authority and in the ACR report nothing was said about the integrity of the petitioner, for the period ending 2001-2002 (1.1.2001 to 31.12.2001) the petitioner was serving as Member Secretary State Legal Service Authority and in the ACR report of the Executive Chairman nothing has been mentioned adverse in regard to the integrity of the petitioner, period ending 31.12.2002 nothing adverse against petitioner was found except a complaint made by one Shri Qazi Salauddin, Advocate but what happened to that complaint there is nothing on record. For the period ending 31.3.2003 It was mentioned by the Portfolio Judge that the petitioner is an honest Judge. No complaint is received.
Thus, the service profile of petitioner earlier to year ending 31.3.1993 31.3.1994 there was no complaint about his integrity and even after 1993 and 1994 there is nothing about his adverse integrity. In the year ending 31.3.1993 it has been mentioned that the reputation of petitioner is not good and similar note is for the period ending 31.3.1994. But, in both these two reports of year ending 31.3.1993 and 1994 there is no indication that the integrity of the petitioner is doubtful during these two years. Thus, throughout the career of the petitioner, there is no remark adverse to his intergrity or his Intergrity was ever found to be doubtful.
Before I deal with the decision of the Supreme Court wherein it has been held that the Integrity of the judicial officer should not be doubtful, I may not deviate from the line, discussing and holding that after the year 1993-94 the petitioner improved himself and gave good and better results as a result of which he was appreciated and was graded "B-Very Good" and "C-Good". After the year 1993-94 the petitioner was granted super time scale in the year 1998-99 and in the year 2001-2002 he was approved for above Super Time Scale. Merely Super Time Scale and above Super Time Scale was granted and allowed to the petitioner in the year 1998-99 and 2001-2002 respectively and not earlier to it, cannot be stretched to the extent that the performance of the petitioner is to weed out him like a dead wood.
Apart from what this Court has decided and held hereinabove in regard to the better performance of the petitioner in every year, after the year 1993 and 1994, admittedly the name of petitioner was considered for his elevation to the Bench in the year 2004 since he was found suitable. This fact is not disputed in the return also. Obviously since the petitioner has proven better performance, his name might have been considered by the collegium for his elevation.
In the case of Nawal Singh (supra"), the Supreme Court has held that honesty and integrity is expected to be beyond doubt and it should be reflected in the overall reputation of a judicial officer. The same principle has been again reiterated in the case of Ishwar Chand Jain (supra) wherein it has been held that the object of inspection of a lower judicial officer by the Portfolio Judge is to assess work performed by him, his honesty, Integrity and competence. The Apex Court further observed that the nature of judicial service is that a judicial officer cannot be allowed to continue in service if he is having doubtful integrity. But in the present case, the integrity of the petitioner was not shown to be doubtful throughout his career. I have already quoted hereinabove the entire service profile of the petitioner and after going through it one cannot say that nowhere his integrity was found to be doubtful.
The entire record pertaining to complaints against the petitioner has also been produced before me during the course of argument by learned senior counsel for respondent No. 1. Thus I am dealing each and every complaint one by one. The complaint against the petitioner when he was posted at Jhabua was found to be baseless and it was closed. The complaints dated 19.6.1992 and 7.7.1992 and also 25.6.1992 in regard to favour one scheduled caste journalist Jagdish Titariya were found to be baseless as a result of which they were directed to be filed. The complaint of Kanta Prasad of Badnagar against the petitioner was directed to be filed as the same was found to be without any substance. The allegations were found to be vague and it was directed that the complaint deserves to be filed and the order of Registrar (Vig) was approved by the Chief Justice on 4,8,2000. In regard to anonymous complaint which was sent by unknown person without any signature or name and which was received on 26.7.1992, it was directed to be filed since there was no description and allegation about the corruption against the petitioner. The note of Registrar (Vig) dated 6.2.1993 was approved by the Committee of the Judges of this Court. Another anonymous complaint of some unknown person against the petitioner of Bar Association Shajapur which has not been signed by any person, made against the petitioner and which was received on 7.1.1980 was directed to be filed and the note sheet In that regard of the Judicial Registrar (A) dated 24.10.1980 was approved by the Committee of Judges of this Court including the Chief Justice and accordingly it was filed. So far as the complaint dated 19th December, 1989 signed by Manohar Rao, Ramesh Kumar, Gyan Rao, Ramdayal Soni and Ramesh Awasthi is concerned, the enquiry was made by the Portfolio Judge Justice Rampal Singh during his inspection and the same was found to be bogus, as a result of which it was directed to be filed. Another anonymous complaint dated nil which was received on 3.10.1989 was directed to be filed and the note sheet of the District Judge (Vig.) dated 3.10.1989 was approved by the Chief Justice and two Judges of this Court. The complaint of one Virendra Singh, Advocate of Rewa against the petitioner after due consideration the Chief Justice directed to file it. The complaint of Saleem Khan Hyder against the petitioner dated nil which was received on 17.7.1990 was directed to be filed by the Administrative Judge as well as by the Chief Justice on 20.8.1990. So far as the complaint made against the petitioner by Shivendra Upadhyaya, Advocate and Rajendra Mishra, Advocate of Rewa dated nil and which was received on 22.9.1997 is concerned, on scrutiny it was found to be without any substance. It was further mentioned that the allegations made in the complaint have no truth. The note of the Registrar (Vig) dated 2.4.1998 was approved by the Chief Justice and it was directed to file the complaint. The complaint of one Bhoop Singh dated nil which was received on 15.12.1999 in regard to taking of bail of an accused u/s 376 IPC is concerned, it was proposed by Additional Registrar (Vig) to file the complaint and the same was approved by the Chief Justice on 2.8.2001. In regard to the complaint made by Advocates of Vidisha which is not signed by any of the advocate and which was received on 28.12.1999, the same was filed by the order of the Chief Justice dated 4.4.2002. The complaint of Krishna Kumar Jain of Vidisha dated 7.8.1999 was also directed to be filed by the order of the Acting Chief Justice on 25.1.2000. So far as the complaint of Madhya Pradesh Nyayik Karmachari Sangh which was submitted under the signature of Vice President Praveen Kumar Singh no final order is found In the note sheet but on the file cover it has been mentioned filed 1997. The complaint of one Ajit Singh, Advocate of Betul dated 26.2.1991 was directed to be filed by the order of Chief Justice dated 20.4.1992.
I have hereinabove dealt each and every complaint submitted by learned senior counsel for respondent No. 1, during the course of her arguments. The entire record of the complaints, which has been submitted by respondent No. 1 shows that all the complaints were found to be baseless and they were directed to be filed.
Yet there is one complaint In regard to the using of Government vehicle and plying it to Allahabad by the petitioner. After considering the reply of the petitioner, the matter was directed to be dropped by the Administrative Committee in its meeting held on 6.4.1998 and In that regard annexure R/15 is on record. So far as the complaint claiming false unit by the petitioner is concerned, after considering the explanation of the petitioner, the Chief Justice directed to issue warning that petitioner should not repeat such type of mistake in future. Against which the petitioner submitted representation and submitted that by mistake 8 days medical leave was typed in the revised statement and later on it was made clear vide Annexure A/16 dated 22.10.2003 that no such leave was taken. On such representation, the matter was directed to be closed. The petitioner was communicated by the decision of his explanation vide D.O. letter No. 160 dated 22.12.2003 whereby he was advised that such error may not be repeated. On going through the note sheet Annexure R/16, it is gathered that the Chief Justice specifically mentioned that " it will not be the part of ACR". Thus, whatever the DO letter No. 1620 dated 24.12.2003 was sent to the petitioner it can be said to be only advisory and since it was mentioned by the Chief Justice that it will not be the part of ACR, the said D.O. letter cannot be stretched to the extent that it amounts to an adverse entry In the record of the petitioner. So far as the other complaints, the description whereof is given in the above para 49 against the petitioner are concerned, I have scanned the entire record and files of those complaints and all of them were found to be baseless by the High Court as a result of which all of them were closed and directed to be filed and rightly no action was taken against the petitioner against those baseless complaints.
In the case of Ishwar Chand Jain (supra) the Supreme Court has said much about how the inspection of subordinate courts is to be made. While discussing the scope of Article 235 of the Constitution it has been held that the High Court is having complete control over subordinate courts and the inspection of subordinate courts is one of the most important function which a High Court performs for control over the subordinate Courts. The object of such inspection is to assess work performed by the subordinate Judge, his capacity, integrity and competency, Judges too are human beings and prone to all human failings. Inspection provides an opportunity pointing out mistakes so that they are avoided in future and deficiency, if any, in the working of subordinate courts are remedied. I have already held hereinabove that after X-raying the entire service profile and confidential report of the petitioner, there is nothing in it in order to show and demonstrate that his integrity was doubtful. In the case of Ishwar Chand Jain (supra), it has been further held that there could be ill-conceived or motivated complaints. The Supreme Court in this regard has said and held that the rumour mongering is to be avoided at all costs as It seriously jeopardize efficient working of subordinate Courts. Therefore, even if there were complaints against the petitioner but they were found to be rumour-mongering and were found to be baseless by the High Court In the administrative side as a result of which rightly they were directed to be filed and closed. Thus, the record of complaints of the petitioner all of which have been ended by directing them to be filed and closed since they were found to be bogus and baseless, cannot be taken into consideration while examining and X-raying the entire service profile of the petitioner for the purpose of retiring him compulsorily. Once the said decision has been taken to close the file of complaints against the petitioner since they were found to be bogus and baseless and were based on rumour mongering those complaints cannot be said to be allowed to make a pivot In order to test the hallmark of the integrity of the petitioner. The complaints which were closed and filed, it would be deemed that they were closed and filed for all practical purposes. If those dead complaints and those rumour mongering complaints are taken into consideration for retiring the petitioner compulsorily, it would amount to dragging the dead horse. This Court fails to understand that when all the complaints were found to be baseless and bogus why files of those complaints were submitted during the course of hearing. In the said decision of Ishwar Chand Jain (supra), the Supreme Court while placing reliance on its earlier decision Ram Ekbal Sharma v. State of Bihar (1990) 3 SCC 501 has held that the Court can lift the veil of an innocuous order in appropriate cases to find the real basis of the order of compulsory retirement of an officer. The Supreme Court relied para 32 of the decision of Ram Ekbal Sharma (supra) which reads thus:
On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement Is couched In Innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the court from delving into the basis of the order if the order in question is challenged by the government servant concerned as has been held by this Court in Anoop Jaiswal case.
The Supreme Court further placed reliance on its earlier decision Anoop Jaiswal Vs. Government of India and Another, wherein in para 12 it has been held as under:
It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to he rights conferred by law upon the employee.
Thus, it can be said that one of the factor to retire petitioner compulsorily is the ground of several complaints, the file of which was also submitted by respondent No. 1 during the course of argument. I have already held hereinabove that those complaints were found to be bogus, baseless and rumour mongering as such they were rightly filed and closed.
The Supreme Court in the case of J.D. Shrivastava (supra) set aside the decision of Full Court retiring the judicial officer compulsorily as well as set aside the judgment of the High Court and held that the confidential reports relating to a remote period would not be relevant for the purpose of determining whether a person should be retired compulsorily or not. The reports for the earlier period of about 10 years were scrutinized and it was held that it would be arbitrary to base the decision to compulsory retire a person on the entries that were made about 30 years before the data on which decision was taken, It was further held by the Supreme Court that such stale entries cannot be placed reliance for retiring a person compulsorily, particularly when the officer concerned has been promoted subsequent to such entries. The reliance was placed by the Supreme Court on its earlier decision D. Ramaswami Vs. State of Tamil Nadu, . In the present case also barring the remote two adverse entries of the year ending March, 1993 and March, 1994 which were written simultaneously, there is nothing against the petitioner. In those two entries also the integrity was not found to be doubtful and it was simply mentioned that the reputation was not good. This note cannot be stretched to the extent that Integrity and honesty of the petitioner was doubtful, Since the integrity and the honesty hammer the hallmark of a government employee, it should be specific and if it is not mentioned that the integrity and honesty is doubtful and it is only mentioned that the reputation was not good, it cannot be stretched to the extent in order to drag the petitioner under the ambit and sweep of doubtful integrity and honesty. Apart from this, the clouds of these two adverse entries were taken away by the decision of the LPA court wherein in para 69 it was specifically held that these entries would not come in the way or will not haunt the petitioner at all through his judicial career and hamper his prospects for all times. It was further made clear that those remarks cannot be read to prejudice petitioner in future if he shows improvement in his work and performance and is able to achieve the requisite grade for being admitted to Higher Selection Grade. In para 37 this Court has given a chart of the entire service profile of the petitioner and the purpose of quoting the above said entire service profile is that after the year 1993 and 1994 the petitioner improved himself and he was either graded "B Very Good" or "C Good". If those two adverse entries of the year ending March 1993 and 1994 is made a pivot to retire the petitioner compulsorily It would amount to sweep the direction and the decision of the LPA Court, which attained finality. In order to give true meaning of para 69 of the decision of the LPA Court since the petitioner improved himself in his work and performance and he was also later on given higher selection grade, super time scale and above super time scale, those two entries lost significance. Those two adverse entries should be read in juxtaposition to para 69 of the judgment of LPA Court as well as the grading of the petitioner in the subsequent years to 1993 and 1994. The Supreme Court in its landmark decision of Baikuntha Nath Pas (supra) as well as the decision of Umedbhai Patel (supra) in para 11 has laid down the norms and law relating to compulsory retirement and the principle in regard to compulsory retirement has been crystallized thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure.
Point No. (i) to (iii) which are laid down by the Supreme Court is the elucidation of law. Point No. (iv) is in regard to the adverse entries made in the confidential report which can be taken note of and due weightage in passing such order. But in the present case, on account of the decision of the LPA court para 69 those above said two entries have lost their significance. Point No. (vii) is in favour of a employee that if he is given promotion despite adverse entries made in the confidential record it would be a fact in favour of the said officer. Indeed, the same principle was laid down by the Supreme Court in its earlier decision of J.D. Srivastava (supra). In the given case, in the service profile chart mentioned in para 37, throughout it is seen that the petitioner improved himself and he was graded "B" and "C" and therefore according to the decision of Umedbhai M. Patel (supra) para 11 (vii), providing selection grade, Super Time Scale and Above Super Time Scale to the petitioner would be the facts which exists in his favour. The case of Baikuntha Nath Das (supra) was decided by the Bench comprised of three Judges. In para 34 (iii) the Supreme Court has held that though the principles of natural justice have no place in the context of an order of compulsory retirement. But, this does not mean that judicial scrutiny is altogether excluded. It was held by the Supreme Court that this Court would not examine the matter like an Appellate Court but definitely this Court can interfere if it is satisfied that the order is passed (a) malafide or (b) that it is based on no evidence or (c) it is arbitrary in nature. The Supreme Court further held that the term "arbitrary" would mean that no reasonable person would form a requisite opinion on the given material. In other words if it is found to be a perverse order. It is well settled in law that the arbitrary action is always open to a judicial scrutiny since it hits the very foundation of Article 14 of the Constitution of India. I have already examined all the complaints made against the petitioner and the files of those complaints which were submitted by respondent No. 1 during the course of arguments, all those complaints were found to be bogus, baseless, and rumour mongering and they were rightly directed to be filed. In para 37 it has already been demonstrated that after the year 1993-94 the petitioner improved himself and therefore I am of the view that no reasonable person would form requisite opinion on the given material to retire the petitioner compulsorily. The Supreme Court in para 34 (iv) in the case of Baikuntha Nath Das (supra) put emphasis that the record and performance of the later years would attach more importance. It was further held that if a Government servant is promoted to a higher post notwithstanding the adverse remark, such remarks loses their sting more so if the promotion is based upon merit (Selection and not upon seniority). In the given case at hand the petitioner was serving on the post of District and Sessions Judge which is the highest post of Higher Judicial Service and therefore If on account of the merit of the petitioner he was benefited by Higher Selection Grade, Super time Scale and Above Super Time Scale the later entries would definitely play an important role in favour to the petitioner.
In Baldev Rai Chadha (supra), the Supreme Court has held that the order to retire compulsorily must be objective and not subjective satisfaction and it should be based on relevant material. The order of compulsory retirement should be based on public interest and not on personal, political or other interests but solely should be governed by the interest of public service. When an order of compulsory retirement is challenged and its validity is supported by respondent in public interest, I am of the view that it should disclose the material so that the Court may be satisfied that the order is not bad for want of any material and a prudent man should digest the decision so taken. In the case of R. Rajiah (supra) the three Judge Bench of Supreme Court held that there can be no doubt that when the High Court takes the view that an order of compulsory retirement should be made against a member of subordinate judicial service, the adequacy or sufficiency of such material cannot be questioned unless the materials are absolutely irrelevant for the purpose of compulsory retirement. In that case since no material was placed justifying the order of compulsory retirement, High Court quashed the same and the decision was upheld by the Supreme Court. The Supreme Court in this case further held that the decision should be based on the materials, otherwise it would be arbitrary, illegal and invalid. In this case (R. Rajiah ) a Committee of three Judges was formed and the case of the judicial officer was scrutinized by the said Committee and a decision was taken that he should be retired compulsorily and thereafter the matter was placed in the Full Court meeting. But in the given case in hand, the Administrative Committee did not recommend the case of petitioner to retire him compulsorily. On going through the minutes of the meeting of Sub Committee of Administrative Committee No. 1 held on 27.8.2004 comprising of 7 Judges including the Chief Justice, the case of petitioner along with other Judicial officers was scrutinized and it was unanimously resolved that the petitioner is found suitable to continue in service. The case of petitioner to continue his service after his attaining the age 50 years as on 31.2.2001 was in the item No. 1 which reads thus:
Item No. 1 : Screening of the cases of Judicial Officers who have completed 20 years of qualifying service or who have attained the age of 50 years during the period 1.7.2003 to 3.7.2004 for their retirement in public interest under Rule 42()(b) of the M.P. Civil Services Pension Rules, 1976 (as amended up to date).
Item No. 1 was unanimously resolved as under:
After considering the service-records, overall performance and other available material (excluding pending enquiries) of the judicial officers who had completed 20 years qualifying service or who had attained the age of 50 years as on 31.2.2001, it is resolved that the following officers are again found suitable to continue in service.
The name of petitioner finds place at serial No. 8 and as per the resolution of the Administrative Committee he was found to be suitable to continue in service. Therefore, Administrative Committee resolved to continue the service of petitioner as he was found suitable, The said Committee further resolved that five officers who have completed their 20 years qualifying service or who had attained 50 years of age as on 31.1.2001 be retired in public interest on payment of pay and allowance for three months under Rule 42(l)(b) of the Pension Rules, 1976 and also amended FR 56 (2)(a), Clause 3(b) of the guideline Issued by the State Government dated 22.8.2000. The said guideline has been annexed as Annexure A-17. Admittedly the name of petitioner does not find place in the list of those 5 judicial officers about whom, after scrutiny, the decision was taken by the Administrative Committee to retire them compulsorily in public interest.
On going through the paper book of the Full Court meeting, it is gathered that the matter in regard to retire the petitioner compulsorily was not even in the agenda of the meeting of the Full Court. The Administrative Committee No. 1 on 27.8.2004 already took the decision and resolved to continue petitioner in service and the said recommendation of Administrative Committee No. 1 was at S. No. 1 in the agenda. The report of Administrative Committee was accepted and approved firstly. Thereafter, it was mentioned that there is typographical mistake in the subject No. 1 of the Full Court resolution dated 11.9.2004 in respect to the matter relating to the omission of F.R. 56. The resolution of Full Court meeting in regard to subject No. 1 after correction was taken as under:
Resolved that the recommendations of the Administrative Committee No. 1 dated 27.8.2004 are approved, subject to the modification that apart from the officers recommended for retirement by Administrative Committee No. 1, the names of Shri S.L. Bansal, Shri R.C. Chandel, Shri S.S. Nahar and Shri Purushottam Bhatt are also approved for retirement on attaining the age of 50 years under Rule 42(l)(b) of the M.P. Civil Services Pension Rules, 1976 (as amended upto date) and Fundamental Rule 56(2)(a), Clause 3(b) of the Guidelines issued by the State Government vide GAD Memo No. C.3-24/2000/3/l dated 22.8.2000 and other enabling provisions in this behalf.
On going through the above said resolution, it is clear that there is nothing in the minutes and the resolution of the Full Court that after considering the entire service record, overall performance and other available material, decision to retire petitioner compulsory was taken, while the resolution of Administrative Committee No. 1 resolving to continue petitioner in service is based on after due consideration of the service record, over all performance and other available material. Thus without scrutinizing the service record of the petitioner, decision was taken by the Full Court to retire petitioner compulsorily which according to the decisions of Supreme Court, is contrary to the well settled principles of law.
In the decision of Nawal Singh (supra), the Supreme Court again by placing reliance on three Judge Judgment of Baikuntha Nath Das (supra) followed the principles of the said decision and held that the case of compulsory retirement should be decided on the settled law and the reliance was placed on the decision of Baikuntha Nath Das (supra). In the case of Madan Mohan Chouhary (supra) the Supreme Court has again reiterated the same principle and held that though the officers of the subordinate judiciary are basically and essentially Government servants, their whole service is placed under the control of the High Court and the Governor cannot make any appointment or take any disciplinary action including action of removal or compulsory retirement unless the High Court is "consulted" as required by the Constitutional impact of Article 233 and 234 and the "control" of the High Court indicated in Article 235. By explaining the meaning of word "Consult" the Supreme Court has held that its ordinary meaning is "to take advice" or "to take counsel". The Governor is thus "Consulter" and the High Court is the "consultee" which is treated as an expert body in all matters of service including appointments, disciplinary action and compulsory retirement relating to the State judicial services. The Supreme Court has further held that the High Court should not act arbitrarily in giving its opinion to the Governor or else it will be a betrayal of the trust if the advise is not supported by any material on record and is arbitrary in character, it may not have any binding well. In the given case what is the material placed on record, it has already been mentioned and discussed by me hereinabove. The Apex Court further by placing reliance on the decision of R. Rajiah (supra) has held that the High Court, in its administrative jurisdiction, has the power to recommend compulsory retirement of a member of the judicial service in accordance with rules framed in that regard, but, it cannot act arbitrarily and there has to be material to come to a decision that the officer has outlived his utility, The Supreme Court further held that the High Court while exercising its power of control over the subordinate judiciary is under a constitutional obligation to guide and protect judicial officers from being harassed or annoyed by trifling complaints relating to judicial officers so that the officer may discharge their duties honestly and independently, unconcerned by the ill-conceived or modified complaints made by the unscrupulous lawyers and litigants. The Supreme Court placed reliance to para 32 of the decision of Baikuntha Nath Das (supra) and quoted the same, in the given case the decision of Madan Mohan Choudhary (supra) and Baikuntha Nath Das (supra) are applicable. I would like to quote para 32 of the decision of Baikuntha Nath Das (supra):
We may not be understood as saying either that adverse remarks need not be communicated or that the representations, if any, submitted by the government servant (against such remarks) need not be considered or disposed of. The adverse remarks ought to be communicated in the normal course, as required by the rules/orders in that behalf. Any representation made against them would and should also be dealt with in the normal course, with reasonable promptitude. All that we are saying is that the action under FR 56(j) (or the rule corresponding to it) need not await the disposal or final disposal of such representation or representations, as the case may be. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration. On this account alone, the action under FR 56(j) need not be held back. There is no reason to presume that the Review Committee or the Government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an opportunity to explain or rebut the same. Similarly, if any representation made by the government servant is there, it shall also be taken into consideration. We may reiterate that not only the Review Committee is generally composed of high and responsible officers, the power is vested in Government alone and not in a minor official, It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action. Such an unlikely situation, if indeed present, may be indicative of malice in law. We may mention in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well-known constraints, the remedy is an effective check against malafide, perverse or arbitrary action.
(emphasis supplied.)
The averments made in the rejoinder are supported by the affidavit of the petitioner but there is no counter affidavit to the said rejoinder. In para 9 of the rejoinder it has been specifically pleaded by refuting the allegations made against the petitioner in the return that he brought pressure for consideration of review petition with regard to the ACR of the year 1993 and 1994. According to the petitioner he never made any representation to R.K. Malviya, Member of Parliament or H.R. Bharadwaj, Minister of State of Law for consideration of review petition filed by the petitioner as alleged. A specific objection has been taken by the petitioner that respondents have not filed the copy of the representation alleged to be sent by the petitioner, as alleged by them. On going through the confidential and personal file of the petitioner I could not find any copy of such representation though copy of the letter is very much there and that has also been annexed as annexure R-8.
The petitioner along with his rejoinder submitted Annexure A/5 (June 1992 to March 1993), Annexure A/6 (April 1993 to March 1994) and Annexure A/7 (April 1994 to March 1995) in regard to the disposal of his civil and criminal cases and this statement does find place in the record submitted by respondent No. 1. The disposal of the cases thus specify and do tally with the requirement of the standard prescribed by the High Court for subordinate Judicial officer. Similarly, there is no counter affidavit refuting the averments made by the petitioner in his rejoinder in regard to the work done and units earned by the petitioner for the period March, 1997 , February 1998 Annexure A/12 and May/June, 2002 (Annexure A/14). After coming back from the deputation, the petitioner joined on 18,5.2002. The petitioner also submitted the units earned and work done by him from the month July, 2002 to December, 2002 and the average unit earned by him, which also finds place from the record. There is no counter affidavit on behalf of respondent No. 1 refuting the factual averments and the record of respondent No. 1 also do tally from the personal record of the petitioner.
The explanation has been given by the petitioner in the rejoinder and which is not refuted by any counter affidavit in regard to the adverse remarks in the year ending 1998 regarding disposal of civil suits. The representation was submitted by the petitioner that on account of sudden illness, hospitalization and sudden demise of his father in February, 1998 he was required to proceed on leave being the eldest son in order to perform all the last rites and other ceremonies and therefore due to mental agony and disturbance in the family he could not dispose of the required number of civil suits. But in the very next month i.e. in the month of April, 1998 the petitioner decided 5 civil suits and in that regard he has filed chart of disposal Annexure A/11. On going through the confidential file, true the decision of those civil suits were taken to be the disposal for next year, but, it is equally true that in very next month the petitioner decided 5 civil suits.
On going through para 12 of the return filed by respondent No. 1, it is gathered that apart from Rule 14 of the Rules of 1994, Rule 56(3) of the Fundamental Rules and Rule 42(1)(b) of the Pension Rules, the petitioner was compulsorily retired on the recommendation of the Full Court meeting as per the revised guidelines of the State Government dated 22.8.2000. The said guideline has been placed on record along with the rejoinder by the petitioner as Annexure A/17. The stand of respondent No. 1 is that the case of petitioner was thoroughly scrutinized on the touchstone of these guidelines dated 22.8.2000 (Annexure A/17). On going through these guidelines, it is gathered that a Screening Committee is required to be constituted for the purpose of scrutinizing the cases of the employees who have completed 50 years of their age or have served for 20 years of their service whichever is earlier in order to take a decision to continue them in service. In the present case in hand, the Administrative Committee, as discussed hereinabove, did not find at all the case of petitioner not to continue him in service. This Committee did consider and scrutinized the cases of 5 other subordinate judicial officers and the resolution was passed that they should be retired compulsorily. Out, so far as the case of petitioner is concerned, a definite resolution was passed by the Administrative Committee comprising of 7 Judges including the Chief Justice, to continue him in the service. In terms of the Clause 3 of the guidelines (Annexure A/17), the committee did consider the case of petitioner to continue him in service in its meeting held on 27.8.2004 and therefore according to Clause 3(b) of the said guideline whether the petitioner should be allowed to continue further in service, should have been considered only after two years i.e. after 27.8.2006. It would be apposite to quote the said Clause 3(b) which reads as under:
c� ftu ''kkldh; lsodksa dh 20 o"kZ dh vkgZdkjh lsok ;k 50 o"kZ vk;q iw.kZ gksus ij Nkuchu dh x;h gks mudh vxyh Nkuchu izR;sd 2 o"kkas esa gksxh A�
Thus, since the case of petitioner was scrutinized after his attaining the age of 50 years and/or 20 years of his qualifying service by the Screening Committee (Administrative Committee No. 1) on 27.8.2004 his case should be further scrutinized in order to take a decision to continue him in service or not, only after two years i.e. after 27.8.2006. Though it has been stated in the return and the stand of respondent No. 1 is that the order of compulsory retirement is based on the guidelines dated 22.8.2000 (Annexure A/17) but in its stricto sensu it is not inconsonance to those guidelines and if that is the position I am of the view that the impugned order is dehors to the criteria laid down in guidelines. Clause 9 of the said guideline further states that a separate statement should be prepared by the Screening Committee in regard to the officers who have completed their 50 years of their age and those who have completed 20 years of their qualifying service. This has also not been done in the present case. In sub para of Clause 9 of the said guidelines it has been specifically mentioned that the guidelines should be followed strictly. But, Clause 3(b) and Clause 9 of these guidelines were not at all followed and taken into consideration.
Apart from this, Clause (1) of the guideline indicates that in order to retire government servant who have completed their 50 years of age or 20 years of qualifying service can be retired compulsorily under F.R. 56 and Rule 42 of the Pension Rules. The Screening Committee constituted under the said guidelines should see that the employee is honest and his integrity should not be doubtful. In the present case, I have discussed hereinabove that nowhere in the entire service profile of the petitioner his integrity was found to be doubtful. The another important criteria in the said clause is that the Screeming Committee will examine whether the employee was graded below ''Good''. In the present case the petitioner has been mostly graded "B- Very Good" and "C-Good" though at some few occasion he was also graded "D-Average". Much has been said by me in regard to the grading of petitioner "E" for the year 1993-94 and I do not want to repeat here it again. In the Clause (1)(iv) of the said guideline a very important fact which cannot be marginalized and blinked away is that the Screening Committee should test the case of an employee whether the work standard of his is deteriorating for last 5 years. In the present case on 27.8.2004 the Administrative Committee considered the case of petitioner and found him to be suitable to continue in service. The service profile of the petitioner 5 years earning to 2004 does not indicate that his work standard is being deteriorated. Thus, again it can be said that though the stand of respondent No. 1 is that the order of compulsory retirement is based on the guidelines of the State Government dated 22.8.2000 (Annexure A/17), but, in fact, the action is contrary to these guidelines. I would not like to hesitate even at the cost of repetition that at the end of the guidelines it has been specifically mentioned that these guidelines should be adhered strictly. But, in the present case Clauses 3(b), 9 and Clause (1) (iv) are totally overlooked, ignored and In contravention to these clauses the impugned order of compulsory retirement has been passed.
The decision of Chandra Singh (supra) placed reliance by Mrs. Menon, learned Counsel for respondent No. 1 and it has been argued that the issuance of writ of certiorari is a discretionary remedy and the High Court may not strike clown an illegal order although it would be lawful to do so, The Supreme Court In para 44 after going through the annual confidential reports against the appellant of that case came to the conclusion that his case was not fit to exercise jurisdiction in his favour. But, in the given case at hand the situation is entirely altogether different which I have discussed already in detail. The decision of Nawal Singh (supra) placed reliance by learned senior counsel has already been discussed by me hereinabove. In the case of Lalsa Ram (supra), it has been held by the Supreme Court that the nature of the delinquency and whether it is of such a degree as to require the compulsory requirement, the Courts have no authority or jurisdiction to interfere with the exercise of power if arrived at bond fide on the basis of the material available on record. But in the given case, as discussed hereinabove, there is no material available on the contrary the impugned order is in contravention to the guidelines Annexure A/17 dated 22.8.2000. Thus, the case of Lalsa Ram (supra) is not applicable in the facts and circumstances. The decision of Shiv Dayal Gupta (supra) cannot be said to be against the petitioner for the simple reason that the Review Committee of that case on the basis of overall perusal of the ACR and overall assessment of the service record consisting of four senior Judges found that continuance of officer would be liable to the detriment and adverse to the public interest and recommended that he should be compulsorily retired. The Full Court accepted the recommendation of the Review Committee and in that situation it was held that retiring Shiv Dayal Gupta compulsorily indeed is chopping of a dead wood and black sheep. But, in the present case the situation is somersaulted. I have already discussed hereinabove that the Administrative Committee in its meeting dated 27.8.2004 did consider the case of petitioner after overall perusal of ACR and assessment and found him fit to be continued in service. Therefore, the decision of Shiv Dayal Gupta (supra) is not at all helpful to respondent, but, supports the case of petitioner. Another decision of the Supreme Court Bishwanath Prasad Singh (supra), placed reliance by learned Counsel for respondent No. 1 is also not applicable. There was an evaluation committee consisting of 9 Judges in which a decision to retire compulsorily was taken. In the given case the Administrative Committee consisting of 7 Judges including the Chief Justice did find the petitioner fit to be continued in service.
In the decision of Gurdas Singh (supra) placed reliance by learned Counsel for the respondent No. 1, the decision of Baikuntha Nath Das (supra) was taken into consideration. The Apex Court held that before taking a decision to retire a Government servant prematurely, the whole service record is required to be considered. In the present case, I have discussed hereinabove, the entire service record of the petitioner. Apart from this in the present case, there are guidelines (Annexure A/17) dated 22.8.2000 and the decision to retire compulsorily is required to be taken on that basis also. Therefore the decision of Gurdas Singh (supra) is distinguishable. The case of Jugal Chandra Saikia (supra) placed reliance by learned senior counsel for respondent No. 1 is tangentially off the point. In the said decision the employee was found to have indulged in serious mal practices in undertaking fraudulent transactions constituting LOC scale of Animal Husbandry Department. The Screening Committee was constituted and the said Committee after looking to the entire service record of the employee, thereafter took a decision to retire him compulsorily. But, the factual aspect of the present case is altogether different since there is nothing on record in order to hold that the petitioner indulged in serious mal practices and the Screening Committee opined to retire him compulsorily. On the contrary in the present case the Administrative Committee opined the petitioner to continue him in service and therefore this decision is also not applicable in the present case. The decision of Suryakant Chunilal Shah (supra) placed reliance by learned senior counsel for respondent No. 1 is also not applicable in the present case because in that case it was held that only honest and efficient persons are to be retained in service while dishonest, corrupt and dead wood is to be dispensed with. The efficiency and honesty is to be assessed on the basis of material on record of which confidential report are an important input. I have discussed hereinabove in regard to the integrity and honesty of the petitioner on the anvil of his ACR. The case of Suryakant Chunilal Shah was placed before the Review Committee who recommended for compulsory retirement and that was reviewed by the High Court and the order of compulsory retirement was set aside and the appeal of the State of Gujarat was dismissed by the Supreme Court. This case is not at all helpful to the respondent. Because in this case the High Court quashed the order of compulsory retirement. The decision of Vijay Kumar Jain (supra) is also not applicable in the present case because the integrity of the employee of that case was doubtful and there were no guidelines to retire compulsorily, But in the present case there are guidelines as well as the integrity of the petitioner is not found to be doubtful.
For the reasons sated hereinabove, the impugned order of compulsory retirement of petitioner dated 13.9.2004 (Annexure P/1) cannot be allowed to remain stand and the same is hereby quashed. The writ petition filed by the petitioner is allowed and the petitioner is hereby directed to be reinstated with all consequential benefits. Looking to the facts and circumstances, the parties are directed to bear their own costs.