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2016 DIGILAW 590 (JHR)

Rai Satish Bahadur son of late Rai Shyam Bahadur v. State of Jharkhand through the Chief Secretary

2016-04-07

SHREE CHANDRASHEKHAR, VIRENDER SINGH

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JUDGMENT : Virender Singh, J. The order dated 17th July, 2008 passed under Rule 74(kha)(ii) of Jharkhand Service Code, 2001 whereby, the petitioner was compulsorily retired from service with effect from 21st July, 2008, has been challenged by him in the present writ petition. 2. The facts narrated in the writ petition are summarised thus: The petitioner was appointed in the Bihar Judicial Service as a probationer Munsif on 8th March, 1984. He was first promoted as Sub-Judge and then as Additional Judicial Magistrate/Chief Judicial Magistrate where-after he was posted at Giridih with effect from 19th October, 2001. After his promotion to the post of Additional District & Sessions Judge, F..T.C, he joined the said post at Dhanbad on 16th August, 2002. While working at Dhanbad as Additional Sessions Judge, F.T.C, the petitioner received order dated 27th April, 2005 whereby, his service was regularised in the pay-scale of Rs.16,000-750-20,500/- with effect from 1st July, 2004 and he was absorbed in the Jharkhand Higher Judicial Service cadre. Subsequently, he was granted promotion under “Assured Career Promotion Scheme” vide order dated 30th August, 2006. The petitioner claims that he was never communicated any adverse remark after his entry in the cadre of the Additional District & Sessions Judge except, when a show cause notice dated 6th September, 2007 was issued to him which was replied by him. The petitioner, while working as Additional District & Sessions Judge for about 6 years disposed of a large number of civil and criminal cases and disposal of cases during these years by the petitioner was more than the average disposal of other Additional District & Sessions Judges in the State still, the punitive order of compulsory retirement from service was issued under Memo no. 4403 dated 17th July, 2008. 3. Heard Mr. Anand Kumar Sinha, learned counsel for the petitioner, Mr. H.K. Mehta, learned Additional Advocate-General for the State and Ms. Anubha Raut Choudhary, learned counsel for the High Court. 4. The learned counsel for the petitioner submits that the order of compulsory retirement dated 17th July, 2008 has been passed without assessing the entire service record of the petitioner. Heard Mr. Anand Kumar Sinha, learned counsel for the petitioner, Mr. H.K. Mehta, learned Additional Advocate-General for the State and Ms. Anubha Raut Choudhary, learned counsel for the High Court. 4. The learned counsel for the petitioner submits that the order of compulsory retirement dated 17th July, 2008 has been passed without assessing the entire service record of the petitioner. The information provided to the petitioner through R.T.I reveals that ACR for the year 2002-2003 was not before the High Court when recommendation under Rule 74(kha)(ii) of Jharkhand Service Code, 2001 was forwarded to the State Government and in fact, ACR for the year 2002-2003 was written subsequently. It is contended that the petitioner, who was granted promotion to the post of Additional District & Sessions Judge and also the benefit of ACP, cannot be slapped with the order of compulsory retirement in the grab of “public interest”. 5. Mrs. Choudhary, the learned counsel appearing for the High Court, refuting the allegation that ACR of the petitioner for the year 2002-2003 was subsequently written, submits that the order of compulsory retirement dated 17th July, 2008 was passed after considering overall performance of the petitioner. It is contended that the subjective satisfaction of the Full Court of the High Court cannot be challenged on the ground that ACR for one particular year was not considered by the High Court while taking a decision on compulsory retirement of the petitioner. 6. We have carefully considered the submissions of the learned counsel for the parties and perused the documents on record. 7. In “Baikuntha Nath Das” case ( AIR 1992 SC 1020 ), the Hon'ble Supreme Court has observed that an order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while exercising it un-communicated adverse remarks were taken into consideration. After noticing previous decisions of the Court, the Hon'ble Supreme Court held that the principles of natural justice are not attracted in a case of compulsory retirement. Finally, before concluding, the Hon'ble Supreme Court enumerated the principles which would governed the cases of compulsory retirement. After noticing previous decisions of the Court, the Hon'ble Supreme Court held that the principles of natural justice are not attracted in a case of compulsory retirement. Finally, before concluding, the Hon'ble Supreme Court enumerated the principles which would governed the cases of compulsory retirement. The learned counsel for the petitioner has relied on the principle under Clause (iv) of the said decision which is extracted below: “(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.” 8. The service record of the petitioner reveals that he was an average Judicial Officer who was never assessed by the Reporting Officers/Inspecting Judges as “very good”. The entries in ACRs for different years from 1985-1986 to 2006-2007 on assessment of the “knowledge of the petitioner” record “average” or “satisfactory” for about 24 years except, “fair” for the year 1990-1991, 1993-1994 and 1996-1997 and “good” for the year 1992-1993 and 1999-2000. In between, for one month, that is, for May, 1996 he has earned the remark “sound”. After more than 20 years of service, the petitioner received remarks as “satisfactory” and “average” in the last three years of his career as Additional District & Sessions Judge which speaks volumes about the potentiality of the petitioner to continue in service as Judicial Officer. Though, the reputation of the petitioner as Judicial Officer has been found in most of the years not bad, but the fact which takes out the case of the petitioner from the purview of the decision in Baikuntha Nath Das's case (supra) is entries in his ACRs for the year 2001-2002 and 2006-2007. It is stated that as many as six complaints including, two from the Registrar (Vigilance) were received against the petitioner and the petitioner was warned many times by the Reporting Officer, who later on became a Judge of the High Court. However, the petitioner continued to work in the similar manner. It is stated that as many as six complaints including, two from the Registrar (Vigilance) were received against the petitioner and the petitioner was warned many times by the Reporting Officer, who later on became a Judge of the High Court. However, the petitioner continued to work in the similar manner. The then Inspecting Judge has remarked in the ACR for the year 2006-2007: “Reputation - lots of complaints have been received about his integrity”. The Inspecting Judge has written additional remarks; “performance is not satisfactory at all”. The ACRs with adverse remarks for two years have been written by two different Reporting Officer/Inspecting Judge. In “R.C. Chandel Vs. High Court of Madhya Pradesh & Ano.” (2012) 8 SCC 58 , the Judicial Officer who had earned the grading “average”, “poor”, “satisfactory” etc. was compulsorily retired from service. The Hon'ble Supreme Court, after noticing the entire in the service record of the said Judicial Officer, observed as under:- “25. ............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.” 9. The contention raised on behalf of the petitioner that he was granted promotion in the recent past and considering the aforesaid fact order of compulsory retirement dated 17th July, 2008 should not have been passed does not merit acceptance. The observation of the Hon'ble Supreme Court in case of “Baikuntha Nath Das” (supra) in respect to the benefit of doubt in cases where an officer has been recently promoted, has to be considered in the context of the peculiar facts of the case. Normally, promotions are granted on different considerations. The promotion granted to the petitioner at any stage may be a mitigating factor but, that by itself cannot be a conclusive proof that the petitioner is fit to continue in service. Normally, promotions are granted on different considerations. The promotion granted to the petitioner at any stage may be a mitigating factor but, that by itself cannot be a conclusive proof that the petitioner is fit to continue in service. It is a matter of record that overall performance of the petitioner reflected in the summary of ACRs which has been provided to the petitioner through R.T.I reveals that the entire service record of the petitioner was scrutinised by the High Court. Non-availability of ACR for the year 2002-2003, at the time when the Full Court examined the service record of the petitioner and came to a conclusion that he deserves to be compulsorily retired from service, would not affect the merits of the decision taken by the Full Court. The remarks for the year 2002-2003 also do not disclose that the petitioner was a “good” officer in all respects rather, the entries in the ACR for the year 2002-2003, a copy of which has also been supplied to the petitioner, also disclose that the petitioner was an “average” Judicial Officer. Several complaints were received by the Reporting Officer against the petitioner and the petitioner was issued warnings. This fact has not been controverted by the petitioner. The petitioner himself admits that his disposal of cases in the last 6 years was just above the average disposal of other Judicial Officers in the State of Jharkhand. The petitioner thus, himself admits that he was just an average Judicial Officer and when the question, whether a Judicial Officer who has been graded average on most of the occasions can be retired compulsorily from service or not, is examined in the context of the decision in R.C. Chandel's case (supra), the answer obviously comes in affirmative. In “S.D. Singh Vs. Jharkhand High Court through R.G & Ors.” (2005) 13 SCC 737 , the order of compulsory retirement of the Judicial Officer was upheld by the Hon'ble Supreme Court though, the said Judicial Officer was granted promotion superseding several senior officers, and the adverse proceeding against him was also dropped. 10. In “S.D. Singh Vs. Jharkhand High Court through R.G & Ors.” (2005) 13 SCC 737 , the order of compulsory retirement of the Judicial Officer was upheld by the Hon'ble Supreme Court though, the said Judicial Officer was granted promotion superseding several senior officers, and the adverse proceeding against him was also dropped. 10. The learned counsel for the petitioner next contended that the adverse entries made against the petitioner about his integrity in the ACR for the year 2006-2007 is based on no material and the entries for the year 2001-2002 in respect of the complaints received against the petitioner were never communicated to the petitioner and therefore, those entries could not have been considered by the High Court for compulsorily retiring the petitioner from service. The learned counsel relied upon the decisions rendered in “Dev Dutt Vs. Union of India & Ors.” reported in (2008) 8 SCC 725 , “Mandan Mohan Choudhary Vs. State of Bihar & Ors.” reported in AIR 1999 SC 1018 and “High Court of Punjab & Haryana through R.G Vs. Ishwar Chand Jain” reported in AIR 1999 SC 1677 . 11. It is well accepted, by now, that adverse entry reflecting on the integrity of a Judicial Officer is at times based on the “general reputation” of the Judicial Officer and the “impression formed in the mind” of the Reporting Officers/Judges, who had opportunity to observe the Judicial Officer closely. Sometimes, it so happens that the general reputation of an employee is not good though, there may not be any tangible material against him. In such a situation the question of continuance of a Judicial Officer beyond a particular age has to be considered in the context of the power of the authority to decide the issue as “an absolute one”. In Rajendra Singh Verma & Ors. Vs. Lieutenant Governor (NCT of Delhi) & Ors. (2011) 10 SCC 1 , Hon'ble Supreme Court has held that “.....If that authority bona fide forms an opinion that the integrity of a particular officer is doubtful, the correctness of that opinion cannot be challenged before courts. When such a constitutional function is exercised on the administrative side of the High Court, any judicial review thereon should be made only with great care and circumspection and it must be confined strictly to the parameters set by this Court in several reported decisions. When such a constitutional function is exercised on the administrative side of the High Court, any judicial review thereon should be made only with great care and circumspection and it must be confined strictly to the parameters set by this Court in several reported decisions. When the appropriate authority forms bona fide opinion that compulsory retirement of a judicial officer is in public interest, the writ court under Article 226 or this Court under Article 32 would not interfere with the order.” 12. In “Ishwar Chand Jain” case (supra), the officer was facing departmental enquiry and he was placed under suspension. In the meantime, the order of compulsory retirement was passed while the disciplinary proceedings were kept pending. The Hon'ble Supreme Court quashed the order of compulsory retirement holding that the said order was based on allegations of misconduct. In the said case the summary of ACRs prepared by Registry was also found incorrect. In “Madan Mohan Choudhary” case (supra), the officer was compulsorily retired for granting anticipatory bail in a case under Section 307 I.P.C. It was also found that remarks in the ACRs for 3 years were recorded at one go and that too after the Standing Committee of High Court formed an opinion to retire the officer. Holding that the order granting anticipatory bail may be wrong but it was passed on the judicial side with all bona fide, the Hon'ble Supreme Court quashed the order of compulsory retirement of the judicial officer. In “Dev Dutt” case (supra), the issue involved was denial of promotion on the ground that only those candidates who had earned “very good” entries in their Annual Confidential Reports for the last 5 years were considered for promotion. The grievance of the applicant was that he was not communicated entry for the year 1993-94 which was “good” and, on that basis he was excluded from consideration for grant of promotion. 13. The facts in the aforesaid cases were entirely different from the facts of the present case. The mandatory communication of entries in the ACRs as held in “Dev Dutt” case (supra) would have no bearing on the merits of the decision to retire a judicial officer compulsorily even though the adverse remarks in the ACRs were not communicated to him. In “Pyare Mohan Lal Vs. The mandatory communication of entries in the ACRs as held in “Dev Dutt” case (supra) would have no bearing on the merits of the decision to retire a judicial officer compulsorily even though the adverse remarks in the ACRs were not communicated to him. In “Pyare Mohan Lal Vs. State of Jharkhand & Ors.” (2010) 10 SCC 693 , the Hon'ble Supreme Court has held that “a single adverse entry regarding integrity even in the remote past is sufficient to pass an order of compulsory retirement”. In “State of U.P & Ano. Vs. Bihari Lal” (1994) Supp. 3 SCC 593, the Hon'ble Supreme Court has observed that “adverse remarks with respect to the integrity of the Officer, against which the Officer had no opportunity to make representation would not vitiate the order of compulsory retirement even though the said order was passed around the same time.” 14. The object behind compulsory retirement under Rule 74(kha)(ii) of Jharkhand Service Code, 2001 is to weed out the dead-wood from service and also to remove the persons with adverse integrity so as, to preserve purity in the judicial administration. In the counter-affidavit, High Court has taken a stand that after due consideration of the entire service record of the petitioner, it recommended compulsory retirement of the petitioner in public interest. Considering the materials brought on record, it does appear that the Full Court of the High Court took a conscious decision to forward the recommendation for his compulsory retirement. It has been held that the power of judicial review of the High Court, while examining the legality of Full Court's decision is very limited and except, in cases where the High Court is convinced that the order of compulsory retirement suffers from serious infirmity in law which has resulted in miscarriage of justice, no interference is permitted. In “Syed T.A. Naqshbandi and others Vs. State of Jammu & Kashmir and others” reported in (2003) 9 SCC 592 , the Hon’ble Supreme Court has held as under:- “10. In “Syed T.A. Naqshbandi and others Vs. State of Jammu & Kashmir and others” reported in (2003) 9 SCC 592 , the Hon’ble Supreme Court has held as under:- “10. …………….Neither the High Court nor this Court, in exercise of its powers of judicial review, could or would at any rate substitute themselves in the place of the Committee/Full Court of the High Court concerned, to make an independent reassessment of the same, as if sitting on an appeal…………In the very nature of things it would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court is convinced that some monstrous thing which ought not to have taken place has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court………” 15. We thus, do not find any infirmity in the impugned order of compulsory retirement of the petitioner dated 17.07.2008. Resultantly, the writ petition fails, as such dismissed. Petition dismissed.