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2011 DIGILAW 685 (MP)

Krishna Kumar Gupta v. State of M. P.

2011-06-28

KRISHN KUMAR LAHOTI, VIMLA JAIN

body2011
ORDER Vimla Jain, J. 1. The Petitioner, being aggrieved by an order No. Fa. No. 3(A) 13/98/21-B (Ek) Bhopal dated 15th May 1998 (Annexure-20), passed by the Principal Secretary. Government of M.P. Department of Law and Legislative Affairs Department, retiring him from service after completion of 58 years, has come to this Court by filing a writ petition under Article 226 of the Constitution of India. 2. Briefly stated the facts are that the Petitioner was appointed as Civil Judge in State Judicial Service in the year 1965. He was promoted to the posts of Civil Judge Class-I, Chief Judicial Magistrate, Additional District and Sessions Judge. He was promoted to the post of District Judge in the month of February 1991, After completion of II years of service in Higher Judicial Service, the Petitioner got promotion as District Judge in Super Time Scale of 5900-200-6700 with effect from 7.10.1994 vide order dated 22.2.1995. The Petitioner was appointed by Respondent No. 1 State as President, District Consumer Dispute Redressal (DCDR) Forum. The benefit of this posting was that the Petitioner could serve till 2002 while he would have superannuated as District Judge in the year 2000. Thereafter, the High Court transferred him from the post of Member, DCDR Forum to Officer on Special Duty in the Registry at Gwalior and he was relieved by the State Government vide order dated 1.6.1998. The Petitioner did not join at Gwalior and proceeded on leave. Before the Petitioner could join at Gwalior, he was served with an order of compulsory retirement on 22.7.1998. In that order, it was mentioned that as the Petitioner was completing 58 years of age on 1.8.1998, he is being compulsorily retired from the service as he was not found fit and suitable to remain in service after completion of 58 years. 3. The Petitioner prayed that the said order of retirement under Section 14(1) and (2) of the M.P. Uchchatar Nyayik Seva (Bharti Tatha Seva Sartein) Niyam, 1994 is wholly illegal, therefore, if should be quashed. 4. Now the question before us is whether the Petitioner was retired arbitrarily on attaining the age of 58 years?. 5. The learned Counsel for the Petitioner submitted that the Petitioner was promoted in super time scale in the year 1995. 4. Now the question before us is whether the Petitioner was retired arbitrarily on attaining the age of 58 years?. 5. The learned Counsel for the Petitioner submitted that the Petitioner was promoted in super time scale in the year 1995. Therefore, the decision of the High Court in its meeting dated 15.5.1998, finding, the Petitioner not fit to continue in service beyond the age of 58 years on the basis of same service record, was bad in law. He also contended that there was no material on the basis of which the High Court could have recommended compulsory retirement. He further submitted that the whole decision making process was conducted in an arbitrary manner. 6. In his support, the learned Counsel for the Petitioner, placed reliance on the decision of the Apex Court in Madan Mohan Choudhary v. State of Bihar and Ors. AIR 1999 SC 1018 . wherein the Apex Court has observed thus: Though the officers of 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 for removal or compulsory retirement unless the High Court is "Consulted". The word "consult" in its ordinary meaning means "to ask advice" or "to take counsel". The Governor is thus a "consulter" and the High Court is the "consultee" which is treated as an expert body in all matters of service including appointments, disciplinary action, compulsory retirement etc. relating to State Judicial Services. Since the Governor cannot act on his own unless he has consulted the High Court, the Constitution has conferred upon the High Court, a sacred and noble duty to give the best of advice or opinion to the Governor; an advice tendered after due deliberation and after taking into consideration all the relevant material and record relating to the problem on which consultation is made, or advice is sought by the Governor. It is, therefore, essentially a matter of trust and confidence between the Governor and the High Court. The High Court cannot act arbitrarily in giving its opinion to the Governor or else it will be a betrayal of that trust. If the advice is not supportable by any material on record and is arbitrary in character, it may not have any binding value. 7. The High Court cannot act arbitrarily in giving its opinion to the Governor or else it will be a betrayal of that trust. If the advice is not supportable by any material on record and is arbitrary in character, it may not have any binding value. 7. The learned advocate appearing for the Respondent No. 2 High Court, has vehemently contended that the High Court in its full Court meeting resolved to compulsorily retire the Petitioner at 58 years of his age in public interest and had taken a bona fide decision on an overall assessment of the work and conduct of the Petitioner, and therefore, it should be maintained. 8. On perusal of the record, it is found that in the present petition before us, the AC Rs of the Petitioner were written in the relevant years and the High Court considered the adverse and average AC Rs in due course of time. The relevant AC Rs of the Petitioner are being reproduced below: (a) The Annual Confidential Report for the period ending 31.3.74 contains the following remarks: '... he has not periodically inspected the work of his staff....' (b) The Annual Confidential Report for the period ending March, 1977 contains the following remarks: '... he is not always punctual.... In some cases, charges were not properly framed by him, though they were promptly framed. Judgments were delivered on due dates by Shri K.K. Gupta. He had not paid due attention to his administrative work, specially relating to Malkhana of Nazarat. He is not always punctual....' (c) The Annual Confidential Report for the period ending March, 1983 contains the following remarks: 'He made false verifications which were detected by the audit party of the High Court. He reopened case in which he heard arguments on false pretexts. He made no inspection of his section on Court, He was careless not to sign at times order-sheets on charge sheets. His quarrel with his wife took the room of big scandal'. (d) The Annual Confidential Report for the period 1983-84 also contains the following adverse remarks: 'He cannot be called prompt. Remarks about integrity and Impartiality-Adverse i.e. not very good. General reputation-Not very good.... He is an average with no good reputation'. (e) The Annual Confidential Report for the period 1985-86 also contains the following adverse remarks: 'He is below average in working as a Judge. Remarks about integrity and Impartiality-Adverse i.e. not very good. General reputation-Not very good.... He is an average with no good reputation'. (e) The Annual Confidential Report for the period 1985-86 also contains the following adverse remarks: 'He is below average in working as a Judge. He lacks in firmness and takes time in taking decisions. He has no control over his. subordinate staff. He-should work hard to attain the prescribed standard of disposal'. (f) The Petitioner was graded 'E' in the year 1985-86. He was graded 'E' in the year 1992-93 and 1993-94. The remarks and grading were duly communicated to the Petitioner vide D.O. dated 11.5.94. The Annual Confidential Report of the Petitioner for the year 1995-96 is also not good. The remarks were duly communicated to the Petitioner vide D.O. dated 12.6.1996. 9. Hon'ble Shri Justice N.K. Jain was the Portfolio Judge of the Petitioner. He inspected the work of the Petitioner and gave the following remarks: .... However, he is expected to be more pragmatic and practical in dealing with the problems of the members of Bar. General: On the whole, his performance on judicial and administrative side is average. He can at best be graded 'C', he can be retained after 56 years of age but should be watched further for a year or so before grant of above Super Time Scale. I would also recommend his transfer to some other district, as his relations with the local Bar are quite strained. He has himself applied for transfer". 10. On perusal of his entire service record, we find that his service record was poor. He had been an average officer with average integrity. He did not command good reputation. He had not always been punctual. He had not paid due attention to his administrative work. These infirmities and weaknesses are also mentioned in his report by Shri Justice N.K. Jain, his Portfolio Judge. He had also advised to keep the Petitioner under observation. 11. In exercise of powers conferred by Article 233 read with Proviso to Article 309 of the Constitution of India, the Governor of Madhya Pradesh, in consultation with the High Court framed the rules in respect of M.P. Higher Judicial Service. These rules are called Madhya Pradesh Uchchatar Nyayik Seva (Bharti Tatha Seva Shartein) Niyam. 1994 (hereinafter called 'Rules'), The Rule 14 ibid relates to the age of superannuation. These rules are called Madhya Pradesh Uchchatar Nyayik Seva (Bharti Tatha Seva Shartein) Niyam. 1994 (hereinafter called 'Rules'), The Rule 14 ibid relates to the age of superannuation. Rule 14 reads as under: 14(1) The age of superannuation of a member of the service shall ordinarily be 60 years provided he is found fit and suitable to continue after 58 years in service of the High Court. (2) Without prejudice to the provisions contained in Rule 56(3) of the Fundamental Rules and Rule 42(1)(b) of the Madhya Pradesh Civil Services (Pension) Rules, 1976, a member of the service not found fit and suitable shall be compulsorily retired on his attaining the age of 58 years. 12. It is clear that the said Rule empowers the State to compulsorily retire a member of the service not found fit and suitable on his attaining the age of 58 years. 13. In Bishwanath Prasad Singh v. State of Bihar and Ors. (2001) 2 SCC 305 . the Apex Court held thus: 1. Direction with regard to the enhancement of superannuation age of judicial officers given in All India Judges Assn. v. Union of India does not result in automatic enhancement of the age of superannuation. By force of the judgment, a judicial officer does not acquire a right to continue in service upto the extended age of 60 years. It is only a benefit conferred on the judicial officers subject to an evaluation as to their continued utility to the judicial system to be carried out by the respective High Courts before attaining the age of 58 years and formation of an opinion as to their potential for their continued useful service. Else the judicial officers retire at the superannuation age appointed in the service rules governing conditions of services of the judicial officers. 14. The High Court, keeping in view the principles laid down above by the Supreme Court, evaluated the entire service record of the Petitioner including the latest report of inspection made by Hon'ble Shri Justice N.K. Jain without any element of unfairness, and properly examined the question of his extension in service beyond 58 years of his age. The decision making process adopted by the High Court does not indicate any fault. Therefore, in our considered opinion, his plea of arbitrariness does not stand. 15. The decision making process adopted by the High Court does not indicate any fault. Therefore, in our considered opinion, his plea of arbitrariness does not stand. 15. The learned Counsel for the Petitioner also submitted that the order of compulsory retirement cast a stigma on the Petitioner. We are not inclined to accept his argument, because the Petitioner is entitled for all the retiral benefits including pension. Our such view is supported by the decision of the Apex Court in K. Manipillai v. High Court of Judicature at Madras and Anr. 2006 LAB I.C. 2365. The Apex Court held thus: Law is well settled that an order of compulsory retirement in accordance with service rules is not considered as a punishment or stigma. When compulsory retirement in terms of service rules is not considered as a stigma, it is obvious that retirement of a Judicial Officer on attaining the normal age of superannuation i.e. 58 years, can never be considered as a stigma so as to stand as a bar for considering such an Officer for reemployment/reengagement in any suitable capacity. A Judicial Officer who retires at the normal age of 58 is obviously eligible for any, other suitable engagement/employment after such retirement. 16. The High Court maintained his record in proper manner and submitted it before us. We find that ACR entries were made soon after the end of the period under review with fairness and objectivity. These entries do not reflect personal whims, fancies, prejudices, likes or dislikes of any of his superior Judge. The High Court made proper assessment of quality and quantity of performance of the Petitioner on the basis of such record. 17. The committee headed by Hon'ble The Chief Justice on its full satisfaction formed a unanimous opinion after considering entire service record of the Petitioner that his further continuance would not be in public interest and he did not have the potential of continued useful service. The impugned order based on such well considered opinion does not deserve any interference by us. 18. The Petitioner failed to convince us that his retirement order is either arbitrary or based on no material or had any legal malice. In our opinion, the said order is bonafide and it is based on adequate material available in the service record of the Petitioner. 19. 18. The Petitioner failed to convince us that his retirement order is either arbitrary or based on no material or had any legal malice. In our opinion, the said order is bonafide and it is based on adequate material available in the service record of the Petitioner. 19. Consequently, we find that the High Court retired the Petitioner with a great sense of responsibility. Therefore, the impugned order is maintained and the petition, which has no force, is dismissed. No order as to costs. Petition dismissed.