Research › Search › Judgment

Gujarat High Court · body

2013 DIGILAW 300 (GUJ)

Pradeep Girdharlal Soni v. State of Gujarat

2013-06-13

A.G.URAIZEE, V.M.SAHAI

body2013
ORDER : A.G. URAIZEE, J. 1. The present petition filed under Article 226 read with Articles 14, 16, 309 and 311 of the Constitution of India is directed against Notification dated 14th October 2009 of the Government of Gujarat in Legal Department bearing No.ICE-2009-3034-D whereby, upon recommendation of the High Court, the petitioner came to be retired with immediate effect under Rule 10(4)(a)(i) and (ii) of the Gujarat Civil Services Pension Rules, 2002. 2. The facts emanating from the pleadings are that the petitioner came to be appointed by the Department of Labour and Employment of the Government of Gujarat as a Judicial Officer (Junior Division), Class-I in the Labour Court vide Resolution dated 11th July 1994 (Annexure-B). He worked as such at different places. Though he was discharging his duties sincerely, honestly and diligently, in pursuance of a false and fabricated complaint, Departmental Enquiry No.17 of 2009 came to be initiated against the petitioner. This departmental enquiry came to be dropped vide communication dated 13th November 2009. In the meantime, vide Notification dated 14th October 2009 on recommendation of this Court (on administrative side), the petitioner came to be retired under Rule 10(4)(a)(i) and (ii) of the Gujarat Civil Services Pension Rules, 2002 in the public interest by the Government of Gujarat in Legal Department. The petitioner being aggrieved by and dissatisfied with the decision of the compulsory retirement has invoked the jurisdiction of this Court under Article 226 of the Constitution of India to challenge the impugned notification. 3. Respondent No.1 - State of Gujarat has not resisted this petition by filing the counter affidavit while Respondent No.2 - High Court of Gujarat has resisted the petition by filing affidavit-in reply. It is contended in the reply affidavit that power to retire the petitioner who has reached the age of 50 yeas is in public interest and by giving a notice of not less than three months in writing or three months' pay and allowances under Rule 10 clause (a) of the Gujarat Civil Services Pension Rules, 2002 that the adverse remarks as enumerated in paragraph 4 were communicated to the petitioner for the period from 2001 to 2007. Upon the evaluation and performance and service record of the petitioner, over a period of last 10 years and his potential for useful service in future, it was recommended to the Government to compulsorily retire the Government Servant in public interest. In these premises, it is prayed that the petition is devoid of merits and may be rejected. 4. Heard Mr. Prabhakar Upadhyaya, learned advocate for the petitioner and Ms Monali Bhatt, learned Asst. Government Pleader for the State and Mr. A.S. Supehia, learned advocate for respondent No.2-High Court of Gujarat. 5. It is the contention of the learned advocate for the petitioner that the petitioner had put in 15 years of service. He would submit that the impugned order of compulsorily retiring the petitioner smacks of mala fides and is punitive in nature inasmuch as the departmental enquiry launched against the petitioner came to be dropped after the impugned action of compulsory retirement. He would further submit that the performance of the petitioner and his out-turn disposal of the cases was good as appears from the reassessment at page 40 and the details of the disposal of the cases. Under the circumstances, he has strenuously submitted that the petition may be allowed and the petitioner may be reinstated in service. 6. Per contra, Mr. A.S. Supehia, learned advocate for respondent No.2 - High Court of Gujarat would submit that the name of the petitioner was recommended to the Government for compulsory retirement after evaluating his performance of last 10 years and he was not found useful in service. He has drawn the attention of the Court to paragraph 34 of the affidavit in reply to contend that between 2001 and 2007 adverse remarks were recorded in the confidential report of the petitioner and they were communicated to him, which are as under:- YEAR Remarks 2001 He has not studious habits 2002 Not prompt in pronouncing judgments and not deciding old matters 2004 No discussion of law in judgments/orders 2005 Knowledge of law not up to the mark. No legal terminology, no discussion of citation at all. 2006 No clarity of thought and expression in the judgment. No understanding of and grounding in law. No studious habits reflected. Discussion and appreciation of evidence is not up to the mark. Language, presentation and precision not satisfactory. No legal terminology, no discussion of citation at all. 2006 No clarity of thought and expression in the judgment. No understanding of and grounding in law. No studious habits reflected. Discussion and appreciation of evidence is not up to the mark. Language, presentation and precision not satisfactory. Disposal of judicial work is poor for the quarter ending September, 2006 2007 He requires more study in law and to be more studious He has relied upon a reported decision of the Honourable Supreme Court in the case of Pyare Mohan Lal v. State of Jharkhand, AIR 2010 SC 3553 to contend that even a single adverse entry is enough for compulsory retirement and therefore he has urged that this petition may be dismissed. 7. In a recent judgment in the case of R.C. Chandel v. High Court of M.P., AIR 2012 SC 2962 the Honourable Apex Court, while examining the scope of judicial review of the order of compulsorily retirement has observed thus: "33. From the above, it is clear that the appellant did not have unblemished service record all along. He has been graded "Average" on quite a few occasions. He was assessed "Poor" in 1993 and 1994. His quality of judgments and orders was not found satisfactory on more than one occasion. His reputation was observed to be tainted on few occasions and his integrity was not always found to be above board. In 1988-89, the remark reads, "never enjoyed clean reputation". In 1993, the remark "his reputation was not good" and in 1994 the remark "officer does not enjoy good reputation", were recorded. His representations for expunction of these remarks failed. The challenge to these remarks on judicial side was unsuccessful right upto this Court. In 1993, it was also recorded that quality of performance of the appellant was poor and his disposals were below average. In 1994, the remark in the service record states that the performance of the appellant qualitatively and quantitatively has been poor. With this service record, can it be said that there existed no material for an order of compulsory retirement of the appellant from service? We think not. The above material amply shows that the material germane for taking decision by the Full Court whether the appellant could be continued in judicial service or deserved to be retired compulsorily did exist. With this service record, can it be said that there existed no material for an order of compulsory retirement of the appellant from service? We think not. The above material amply shows that the material germane for taking decision by the Full Court whether the appellant could be continued in judicial service or deserved to be retired compulsorily did exist. It is not the scope of judicial review to go into adequacy or sufficiency of such materials." In paragraph 37 of the aforesaid decision the Honourable Supreme Court has elucidated the qualities expected of a Judicial Officer in the following words: "37. Judicial service is not an ordinary Government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar's wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty." 8. The submission of the learned advocate for the petitioner that the order of compulsory retirement of the petitioner is punitive in nature as the departmental proceedings have been dropped by the communication dated 13th November 1993 after the petitioner is compulsorily retired cannot be countenanced. Continuing departmental inquiry proceedings against the petitioner after he was made to compulsorily retire would have been an exercise in futility. Continuing departmental inquiry proceedings against the petitioner after he was made to compulsorily retire would have been an exercise in futility. Hence, merely because the departmental proceedings against the petitioner are dropped after his compulsory retirement is no ground to label the impugned order of compulsory retirement as being actuated by mala fides. 9. While applying the ratio propounded by the Honourable Supreme Court in paragraph 33 of the case in the case of R.C. Chandel (supra) by no stretch of imagination it can be said that the judicial performance of the petitioner was good, as has been held by the Honourable Supreme Court in the case of Pyare Mohan Lal (supra), relied upon by the learned counsel, Mr Supehia for Respondent No.2 that even a single adverse remarks is enough to invite the compulsory retirement. By now it is well settled by a catena of judgments that the scope of judicial review of the order of compulsory retirement is very limited and the Court cannot go into the adequacy or inadequacy of the material on which the order of compulsory retirement is based. Be that as it may, as it would appear from the foregoing it cannot be said that the petitioner is compulsorily retired sans any material or record. The purpose of resorting to Rule 10(4)(a) of the Gujarat Civil Service (Pension) Rules, 2002 is to weed out deadwood and non-performing officers in the public interest so that the system can be strengthened. 10. We do not find any substance in the petition and there is no germane reason which would warrant us to interfere or disturb the decision of the Government whereby the petitioner is made to retire compulsorily. Accordingly, the petition is dismissed without costs. Rule is discharged. Petition dismissed.