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Raj Kumar v. State Of Up Thru' Principal Secy Appointments And Others - WRIT - A No. - 55924 of 2005 [2007] RD-AH 18095 (20 November 2007)

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Civil Misc. Writ Petition No. 55924 of 2005

Raj Kumar


State of U.P. and another


Hon'ble Sushil Harkauli, J.

Hon'ble K.N. Ojha, J.

The petitioner, being a member of the U.P. Higher Judicial Service, has challenged the order of his compulsory retirement dated 17th May 2005 passed by the Governor of Uttar Pradesh under Fundamental Rule 56 on the recommendation of the Allahabad High Court.

The first ground of challenge argued by the learned counsel for the petitioner is that the petitioner was promoted to the U.P. Higher Judicial Service on 13th June 1988 and was confirmed in that cadre as Additional District Judge on 16th April 1992. It was argued that any adverse entry awarded to the petitioner prior to the date of confirmation i.e. 16th April 1992 must be ignored. It was argued from the petitioner's side, although the argument is factually not correct, that after the date of confirmation i.e. 16th April 1992, till his compulsory retirement on 17th May 2005, there was nothing adverse against the petitioner in his service record.

Reliance was placed from the petitioner's side, apparently without reading the full text, upon the decision of the Supreme Court in the case of Union of India Versus P.S. Dhillon, (1996) 3 S.C.C. 672. An extract from paragraph 15 of the said law report is quoted below to show that the contention for disregarding the pre-confirmation entries raised by the petitioner is not correct and is contrary to law declared by the Supreme Court.

"Keeping in view the circumstances attendant to his confirmation as member of the ITAT with effect from 1-4-1985, we are unable to agree with the tribunal that after such confirmation the adverse material on the record for the period prior to 1-4-1985 should be disregarded. In our opinion, the entire service record of the respondent including the record for the period prior to 1-4-1985 had to be taken into consideration by the appropriate authority........"

When the above passage from the decision cited by him was pointed out to the learned counsel for the petitioner, he fell back upon the decision of the Supreme Court in the case of Baikuntha Nath Das Versus C.D.M.O., (1992) 2 S.C.C. 299, for the proposition that where promotion is based upon merit (selection) and not upon seniority, the unfavorable remarks prior to such selection and promotion lose their sting.

The said three Judge Bench decision of Baikuntha Nath Das (supra) was considered upon by another three Judge Bench of the Supreme Court in the case of State of Punjab Versus Gurdas Singh, (1988) 4 S.C.C. 92. After referring to this case of Baikuntha Nath Das, the Supreme Court in paragraph 11 of the said law report, says as follows:

"..................Before the decision to retire a government servant prematurely is taken the authorities are required to consider the whole record of service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest tor retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well." (emphasis ours)

The other argument of the learned counsel for the petitioner that uncommunicated adverse entries can not be considered for the purpose of deciding the issue of compulsory retirement is also contrary to the law laid down by the Supreme Court in the passage quoted above.

Factually, the counter affidavit of the High Court says that even in the post-confirmation period there was adequate and serious adverse material against the petitioner. From the respondent side it has been argued that the compulsory retirement of the petitioner was unanimously recommended by the Full Court in its meeting dated 30th April 2005 on the recommendation of the Screening Committee made pursuant to the meeting of the Committee held on 2nd April 2005.

The counter affidavit justifies the order of compulsory retirement by showing the adverse material against the petitioner in his service records. This adverse material can be divided into two parts : (a) material before the promotion to Higher Judicial Service on 13th June 1988, and (b) material subsequent to that promotion.

Pre-promotion adverse material

(a) For the year 1975-76, his disposal was low at 67% and judicial work was merely satisfactory.

(b) For the year 1976-77, the officer was posted at Mathura for part of year and Gorakhpur for the remaining part. Both the District Judges of Mathura and Gorakhpur gave the opinion that his disposal as well as the quality of judicial work needed improvement. Moreover, the District Judge, Mathura further remarked that the officer should practice restraint and avoid being social in order to carry himself out into a good judicial officer.

(c) For the year 1977-78, the Character Roll of the officer says that the District Judge has reported that his judgments in criminal cases were of poor quality and that he is not amenable to the advice of the District Judge. Overall, the District Judge graded him as a poor officer. The officer's representation against these adverse remarks were rejected. The representation was also against the adverse remarks of 1976-77, which was also rejected.

(d) For the year 1978-79, his Character Roll indicates that his judgments are sub-standard. A number of complaints were received against the officer for loosing temper in Court.

(e) For 1980-81, the entry is not adverse and for 1982-83, there is an adverse entry, which is not serious and can be ignored. However, for 1983-84 again, the A.C.R. Of the officer says that his relations with members of the Bar and with brother officers are "just satisfactory". The quality of his judgments is average. He is not fully amenable to the advice of superior officers and he is rated as an average officer.

Adverse remarks which were given by the District Judge for 1984-85 were expunged, and therefore that can not be considered as adverse material.

Post-promotion adverse material

(a) For the year 1990-91, most of the adverse remarks were expunged except the remark that sometimes the officer lost temper in Court. Thereafter, there was a complaint dated 18.10.1999 against the petitioner by one Dr. Rajeev Kulshrestha alleging that the doctor was subjected to humiliation by the officer. After examining the comments of the officer, the Administrative Committee of the High Court prima facie found the allegation to be correct and resolved that the petitioner be warned that such incident may not occur in future. The Administrative Committee also directed that this warning should be sent to the personal file of the officer.

(b) On 2.8.2000, after examining the enquiry report submitted by a then sitting Judge of this Court (Hon'ble Mr. Justice D.K. Seth) into allegations of corruption by the petitioner, the Administrative Committee of the High Court directed that the petitioner be cautioned to be more careful in future. A committee constituted for considering the grant of selection grade pay scale, in its meeting dated 14.9.2004 refused to grant selection grade and the report of this Committee was accepted by the Administrative Committee of the High Court in its meeting dated 26.9.2004.

( c) The last and the most serious material is that a complaint was made against the petitioner that while convicting the accused, who had committed rape on a minor harijan girl aged about 10 years, the petitioner had released the accused on probation for three years, by himself accepting surety bonds on the same day. The Administrative Committee recommended strict disciplinary action including suspension of the petitioner. An Hon'ble Judge of this Court was appointed Enquiry Officer and after conducting the enquiry, the enquiry Judge submitted a report dated 15.4.2005, the relevant extract of which reads as follows:

"After taking the evidence, hearing the Presenting Officer, and the charged officer, perusing his written statement, and the judgments cited by him, I find that the charge is established. The charged officer has committed a shocking act, which amounts to reckless and negligent exercise of his powers, in releasing the accused Munesh after having convicted him for the offence of a violent rape on the person of minor harijan girl aged 10 years, in S.T. No. 512 of 1997: State Vs. Munesh, P.S. Nidhauli Kalan, District-Etah, on probation, and thereafter accepting his affidavit sworn on the same day when he pronounced the judgment at 10.30 A.M., and the sureties, and releasing the accused on the same day from his Court. Section 4 of the U.P. Probation of Offenders Act, 1958 was not applicable to the case as the offence under section 376 (2), I.P.C. was also punishable with imprisonment for life.

The charged officer is thus guilty of negligent and reckless exercise of his judicial powers in which there was no question of exercise of discretion in favour of the accused. He failed to maintain absolute integrity and complete devotion of duty, and has committed a gross misconduct within he meaning of Rule 3 of the U.P. Government Servant Conduct Rules, 1956."

Faced with this serious charge, learned counsel for the petitioner tried to escape by saying that this report is dated 15.4.2005 whereas, the meeting of the Screening Committee which recommended the compulsory retirement of the petitioner was held on 2.4.2005. Firstly, even if this report had not been given by the Enquiry Judge on the date when the meeting of the Screening Committee was held, yet even on 2.4.2005 the Screening Committee would have been fully aware of the fact that the officer was under suspension facing a disciplinary enquiry into the serious charge of the nature referred above. We see no reason why the facts could not have been taken into consideration by the Screening Committee. Secondly, the Full Court meeting where this recommendation of the Screening Committee was approved took place on 30.4.2005 by which time the report of the Enquiry Judge dated 15.4.2005 had already been given. The law relating to compulsory retirement and interference with compulsory retirement by way of judicial review as spelt by the Supreme Court in State of U.P. Versus Bihari Lal, A.I.R. 1995 S.C. 1161, is quoted below:

"..........It is now settled law that the entire service record should be considered before taking a decision to compulsorily retire a Government servant exercising the power under Rule 56(i) of the Fundamental Rules. It is not necessary that adverse remarks should be communicated or every remark, which may sometimes be categorised as adverse, be communicated. It is on an overall assessment of the record, the authority would reach a decision whether the Government servant should be compulsorily retired in public interest. In an appropriate case, there may not be tangible material but the reputation of officer built around him could be such that his further continuance would imperil the efficiency of the public service and would breed indiscipline among other public servants. Therefore, the government could legitimately exercise their power to compulsorily retire a Government servant. The Court has to see whether before the exercise of the power, the authority has taken into consideration the overall record even including some of the adverse remarks, though for technical reasons might be expunged on appeal or revision. What is needed to be looked into is the bona fide decision taken in the public interest to augment efficiency in the public service. In the absence of any mala fide exercise of power or arbitrary exercise of power, a possible different conclusion would not be a ground for interference by the Court/Tribunal in exercise of its judicial review.........."

Similarly, it has been held by the Supreme Court in the case of I.K. Mishra Versus Union of India, (1997) 6 S.C.C. 228 that so long as the power of compulsory retirement has been exercised bona fide, that is to say that the authorities have arrived at a bona fide opinion that such retirement is in public interest, judicial interference with such subjective decision would not be proper.

Again in Nawal Singh Versus State of U.P., A.I.R. 2003 S.C. 4303, which is a decision relating to judicial officers, it has been held by the Supreme Court as follows:

"At the outset, it is to be reiterated 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. It should be reflected in their overall reputation. Further nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because order of compulsory retirement is based on the subjective satisfaction of the Authority."

In the same decision, the applicability of Fundamental Rule 56 permitting compulsory retirement has also been upheld.

In view of the aforesaid facts and law, the subjective satisfaction that compulsory retirement of the petitioner is in public interest having regard to the totality of facts and circumstances, which has been recorded in the recommendation of the Screening Committee comprising five Senior Judges of the High Court and, which has been approved unanimously by a Full Court meeting comprising of all the Judges of the High Court, cannot be said to be (i) either based on no material; or (ii) arbitrary; or (iii) lacking in bona fides. It is not open to the writ Court to consider whether the material, on which the subjective decision was based, is adequate or sufficient for sustaining the decision. The decision is therefore not capable of being interfered with in this writ jurisdiction.

Accordingly, this writ petition is dismissed.

Dated: November 20, 2007



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