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2006 DIGILAW 1517 (RAJ)

N. K. Karnani v. State of Rajasthan

2006-05-05

DINESH MAHESHWARI, S.N.JHA

body2006
Judgment S.N. Jha, CJ.-This writ petition on behalf of a former judicial officer and member of the Rajasthan Judicial Service has been filed for quashing the order of his compulsory retirement, and for consequential reliefs. 2. The petitioner entered Government service initially as a Lower Division Clerk on 18.02.1976. While he was working as Stenographer Grade I, on promotion, in Bikaner Judgeship he successfully competed at the Rajasthan Judicial Service examination and was appointed to the Judicial Service on 27.09.1993. After completing training he was posted as Civil Judge (Junior Division) and Judicial Magistrate. While working as such on 010.1997 a charge-sheet under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, CCA Rules) was issued to him. After inquiry, however, he was exonerated of the charge. On 13.01.2000, another charge-sheet was issued under Rule 17 of the CCA Rules. Again, he was exonerated of the charge. In file Nos. R/V/446/2000 and R/V/339/2003 orders were passed for initiating departmental inquiry under Rule 16 of the CCA Rules, but before charge-sheet could be issued his case was considered by a Committee of Judges which had been constituted by the Chief Justice to identify judicial officers falling within the zone of consideration for compulsory retirement under Rule 53(1) of the Rajasthan Civil Services (Pension) Rules, 1996 (in short, the Pension Rules). The reconstituted committee finally considered the cases of the officers of the Rajasthan Higher Judicial Service (RHJS) and Rajasthan Judicial Service (RJS) who had either completed fifteen years of service or attained fifty years of age. It is relevant to mention here that though the petitioner was appointed to the Rajasthan Judicial Service, on 27.09.1993, on his application, his past service rendered under the State Government from 18.02.1976 was counted and that is how he came within the zone of consideration. The Committee of Judges on consideration of his service record, including personal and other files, vide report dated 14.06.2004, came to the conclusion that the petitioner had proved to be a liability to the judicial service, and public interest warrants his immediate compulsory retirement. On 09.07.2004 the Full Court accepted the report of the Committee and made recommendation to the Governor for issuing the order. Order of compulsory retirement in public interest was issued by the Government on 13.07.2004 paying him three months’ pay and allowances in lieu of three months’ prior notice. On 09.07.2004 the Full Court accepted the report of the Committee and made recommendation to the Governor for issuing the order. Order of compulsory retirement in public interest was issued by the Government on 13.07.2004 paying him three months’ pay and allowances in lieu of three months’ prior notice. By a separate communication on the same day, bank draft for the amount equivalent to three months’ pay and allowances was sent to him. Copies of the said order/letter have been enclosed as Annexures 1 and 2 to the writ petition. 3. Before issuing formal notice to the respondents this Court considered it appropriate to examine the service records of the petitioner and called upon Shri Sangeet Lodha who usually appears for the High Court to produce the relevant records. From the record the following facts emerge, besides those already stated above. 4. During the first year of service in 1994 the petitioner was rated “good” but in 1995 and 1996 (I), he was rated “average”. In 1997 (I) he was rated “below average”. In the APAR the District Judge wrote that his character, integrity was under cloud and highly doubtful. He enjoyed a very low reputation and his general image was not commensurate of a judicial officer. In 1997 (II) also he was rated “below average”. In the year 1998 he was rated “average”. In 1999 he was rated “good” “on the basis of disposal of cases”. Again in 2000 he was rated “good” but in 2001 he was rated “average”. There was a remark about integrity and fairness and the integrity was said to be “highly doubtful” by the District Judge. In the year 2002 (I) he was again rated as “below average” but in 2002 (II) rated as “good”. In the year 2003 again he was rated as “average”. In 2004 he was compulsorily retired. 5. During this period fourteen complaints were received against him out of which thirteen were filed but one was pending. Further, on 24.05.2001 he was found not fit for promotion as ACJM i.e., Civil Judge (Senior Division) and superseded. He was later promoted by circulation on 06.08.2002. 6. It was submitted on behalf of the petitioner that the adverse entries, except two for 1996 (II) and 1997 (II) were not communicated and without giving opportunity to explain them the order of compulsory retirement was passed. The submission is wholly misconceived. He was later promoted by circulation on 06.08.2002. 6. It was submitted on behalf of the petitioner that the adverse entries, except two for 1996 (II) and 1997 (II) were not communicated and without giving opportunity to explain them the order of compulsory retirement was passed. The submission is wholly misconceived. The legal position settled by the decision in Baikuntha Nath Das & Anr. vs. Chief District Medical Officer, Baripada & Anr., 1992 (2) SCC 299 , is that un-communicated adverse remarks can form the basis of compulsory retirement. Indeed, remarks “average” or “below average” reflected the final assessment of his working as a judicial officer based on subjective satisfaction of the authorities and there was hardly any scope for their expunction. 7. From the above resume of his service record, it is evident that except in the year 1994, which was the first year of his service as a judicial officer, 1999, 2000 and 2002(II), the remarks were either “average” or “below average” which shows his potential - or lack of it -as a judicial officer. Apart from these “average” and “below average” remarks there were positive remarks about his integrity. We have not referred to some of the remarks which were expunged. The Committee of Judges considered the entire record of service and came to the conclusion that he was a liability to the judicial service and public interest demands that he be compulsorily retired immediately. 8. The scope of inference with orders of compulsory retirement fell for consideration in the case of Baikuntha Nath Das & Anr. vs. Chief District Medical Officer, Baripada & Anr., (Supra), by a Bench of three Judges to resolve the conflict between some earlier decisions. On an indepth consideration the Supreme Court laid down the following principles : “(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary -in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. .(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter -of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. .(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference”. 9. Having stated these principles the Supreme Court clarified that “interference is permissible only on the grounds mentioned in (iii) above” i.e., (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary -in the sense that no reasonable person would form that opinion on the given material, that is to say, it is found to be a perverse order. 10. Similar view was expressed by another three Judge-Bench in Posts and Telegraphs Board & Ors. vs. C.S.N. Murthy, 1992 (2) SCC 317 . The Court observed that even where earlier record was throughout good, two adverse remarks of the latest year constituted sufficient material to arrive at the subjective satisfaction of the committee and in the absence of any material showing mala fide, perversity, arbitrariness or unreasonableness, the High Court committed error in setting aside the order of compulsory retirement. 11. The Court observed that even where earlier record was throughout good, two adverse remarks of the latest year constituted sufficient material to arrive at the subjective satisfaction of the committee and in the absence of any material showing mala fide, perversity, arbitrariness or unreasonableness, the High Court committed error in setting aside the order of compulsory retirement. 11. The order of compulsory retirement is result of subjective satisfaction based on objective consideration of the record. Where a Committee of Senior Judges resolves to compulsorily retire a judicial officer on consideration of entire record of service - the record showing a dismal picture - the decision cannot be said to be arbitrary or unreasonable. The decision was based on evidence available in the service record, and in the absence of any allegation of mala fide, the order of compulsory retirement cannot be said to be bad so as to warrant interference in writ jurisdiction. 12. In the result, we find no merit in the writ petition which is accordingly dismissed.