Ashok Kumar Tyagi vs High Court Of Judicature And Anr on 26 October, 2017

[Cites 49, Cited by 0]

Rajasthan High Court - Jaipur

Ashok Kumar Tyagi vs High Court Of Judicature And Anr on 26 October, 2017

Bench: K.S. Jhaveri

 HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
                      JAIPUR
              D.B. Civil Writ Petition No. 11039 / 2010
Ashok Kumar Tyagi S/o Late Shri Mahendra Pal Tyagi, aged 59
years, resident of 100, Officers Campus Extension, Sirsi Road,
Jaipur (Rajasthan).
                                                          ----Petitioner
                                Versus
1.   High Court of Judicature for Rajasthan, Jodhpur through its
Registrar General
2.   State of Rajasthan through its Principal Secretary, Law &
Legal Affairs Department, Secretariat, Rajasthan, Jaipur.
                                                     ----Respondent

_____________________________________________________ For Petitioner(s) : Mr. S.S. Hora For Respondent(s) : Mr. A.K. Sharma, Sr. Adv. with Mr. V.K. Sharma _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 26/10/2017

1. By way of this petition, the petitioner has challenged the action of the High Court and State Government in compulsory retiring the petitioner from the judicial service.

2. The case of the petitioner is that his date of birth is 26.05.1951. In the year 1991, he joined as Additional District Judge (Anti Dacoity cases Court) Bharatpur. During the year 1991- 96 he served as A.D.J. Sikar, Kishangarh Bas and Bikaner.

Thereafter, he was promoted as District and Session Judge and served in different Districts i.e. Special Judge (NDPS Cases) Chittorgarh, Special Judge (MACT Cases) Udaipur, Special Judge (CBI Cases) Jodhpur, Judge Family Court, Jaipur and Ajmer, Judge, (2 of 62) [CW-11039/2010] Labour Court, Bikaner, Judge, Co-operative Tribunal, Jaipur, Member Secretary, Rajasthan State Legal Service Authority.

2.1 On 16.11.2002, he was granted selection grade. Though in 2003 Screening of Judicial Officers was done for Compulsory Retirement but the name of petitioner was not recommended for compulsory retirement. petitioner was above 50 years at that time. On date 23.03.2005 petitioner was given Super Time Scale.

2.2 During the period 2004-2006, he was posted as Principal District and Sessions Judge, Jhalawar. In 2007, he was posted as Principal District and Sessions Judge, Bharatpur. In 2009, he was posted as Principal District and Sessions Judge, Jaipur City, Jaipur.

2.3 In 2009 name of the petitioner was recommended for elevation as a Judge for Rajasthan High Court. Vide order dt.

31.3.2010, he was compulsorily retired. However, the order was communicated to him on 2.4.2010.

3. Counsel for the petitioner has taken us to para no.13 of representation (Annexure-8), which reads as under:-

(13) That the representee has reasons to believe that some biases have operated against him. It is submitted that against the vacancy in the Rajasthan High Court for which the name of the representee was sent, the Registrar General of High Court Shri Kailash Chandra Joshi was also trying to get his name considered. Any impact on the service of the representee would have directly benefited him. It appears that the said Registrar General has misrepresented the facts before the screening committee and did not disclose the correct facts on account of which the committee was misled into recommending compulsory retirement. As per the Hon'ble Supreme Court determined age limits for appointment as a Judge the (3 of 62) [CW-11039/2010] only vacancy against which Shri Kailash Chandra Joshi could have been considered is the vacancy for which the name of representee was sent and therefore he had vested interest to see that the name of representee is ousted from the race."

3.1 He also pointed out the other material and contended that the allegations which are levelled against the petitioner were all fabricated and petitioner was not in knowledge of any of the allegations made against him. The so called uncommunicated complaints considered were not supported by any material. On the complaints which are filed, no action was taken without prior opportunity to the petitioner and complaint which are old and still are acted prejudicial to the interest of the petitioner and though after those complaints, he was granted promotions and allegations which are made in the complaints are of a very frivolous nature and are made with ulterior motive to harass the petitioner, the same have been revived almost after two decades.

3.2 Counsel for the petitioner has relied upon the following decisions with regard to adverse entry in the ACR and to show the petitioner has been penalised for alleged allegations therein which were not properly inquired and he was penalised without following due procedure:-

In Registrar, High Court of Madras vs. R. Rajiah and K. Rajeswaran reported in (1988) 3 SCC 211, it has been held as under:-

"22. It is true that the High Court in its administrative jurisdiction has power to compulsorily retire a member of the judicial service in accordance with any rule framed in that regard, (4 of 62) [CW-11039/2010] but in coming to the conclusion that a member of the subordinate judicial service should be compulsorily retired, such conclusion must be based on materials. If there be no material to justify the conclusion, in that case, it will be an arbitrary exercise of power by the High Court. Indeed, Article 235 of the Constitution does not contemplate the exercise by the High Court of the power of control over subordinate courts arbitrarily, but on the basis of some materials. As there is absence of any material to justify the impugned orders of compulsory retirement, those must be held to be illegal and invalid.

26. Another infirmity that has been pointed out by the Division Bench is of some substance. The respondent, K. Rajeswaran, was selected a District Munsif by the Public Service Commission on 29.11.1971. His probation was declared by the order of the High Court dated 15.7.1974 and on 1.1.1976 he was confirmed as a District Munsif. The Division Bench has rightly observed that it must be taken that when he was confirmed on 1.1.1976, there was nothing seriously wrong against him. In coming to a decision that the respondent should be compulsorily retired, the third Judge of the Review Committee relied upon events that had happened right from 30.3.1954. It is curious that the past events that happened in 1954 were not considered to be of any significance in appointing the respondent to the post of District Munsif, but for the purpose of compulsory retirement those events were considered to be of importance. In Baldev Raj Chadha v. Union of India, [1981] 1 SCR 430 this Court observed as follows:

"One wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be a wrong cut. The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision has influenced the decision. Any order which materially (5 of 62) [CW-11039/2010] suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained."

27. The above decision has been relied upon by the Division Bench and that rightly. The decision to compulsory retire the respondent, in our opinion, is vitiated as the High Court had relied upon some adverse incidents against the respondent that took place in 1954, although the respondent was appointed to the post of District Munsif in 1976. In this regard, we may also refer to an observation by this Court in Brij Bihari Lal Agarwal v. High Court of M.P., [1981] 2 SCR 297:

"It is possible that a Government servant may possess a somewhat erratic record in the early years of service, but with the passage of time he may have so greatly improved that it would be of advantage to continue him in service up to the statutory age of superannuation."

In Ram Ekbal Sharma vs. State of Bihar and another (1990) 3 SCC 504, it has been held as under:-

13. It has been contended on behalf of the appellant that though the impugned order is couched in innocuous terms and it is made in compliance with the provisions of Rule 74(b)(ii) of Bihar Service Code on appellant's reaching the age of more than 50 years and it does not prima facie appear to cast any stigma on the service career of the appellant yet it has been made by way of punishment casting stigma on the appellant's service career and as such the impugned order is illegal, bad and the same has been made in violation of audi alteram partem rule as well as Article 311(2) of the Constitution. It has been further submitted in this connection that the power to retire the appellant compulsorily from service has not been made in public interest under Rule 74(b)

(ii) of Bihar Service Code but on the basis of the fact finding report given by the Deputy Development Commissioner, Dumka by his letter dated September 19, 1987 regarding (6 of 62) [CW-11039/2010] grave financial irregularities committed by the appellant in consideration of which a memorandum was prepared by the Additional Commissioner-cum-Special Secretary, Shri T. Nand Kumar on October 6, 1988 recommending to the respondent-State to compulsorily retire the appellant from service under Rule 74(b)(ii) of Bihar Code. It has also been contended that the basis of the order was made with oblique purposes in consideration of extraneous matter and the impugned order purports to removal from service on certain serious allegations of misconduct and consequently it casts a stigma on the service career of the appellant. Such order of compulsory retirement from service though appears to be innocuous, has been made by way of punishment and as such it is liable to be set aside and quashed.

32. On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned government servant as has been held by this Court in Anoop Jaiswal's case. This being the position the respondent-State cannot defend the order of compulsory retirement of the appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of Rule 74(b)(ii) of the Bihar Service Code which prima facie does not make any imputation or does not cast any stigma on the service career of the appellant. But in view of the clear and specific averments made by the respondent-State that the impugned order has been made to compulsorily retire the appellant from service under the aforesaid Rule as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the impugned order cannot but be said to have been made by way of punishment.

(7 of 62) [CW-11039/2010] As such, such an order is in contravention of Article 311 of the Constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bonafide.

In High Court of Punjab and Haryana Through R.G. vs. Ishwar Chand Jain and anr. (1999) 4 SCC 579, it has been held as under:-

24. In Ram Ekbal Sharma v. State of Bihar and Anr. : (1990)IILLJ601SC , it was laid down that court can lift the veil of an innocuous order in appropriate cases to find the real basis of the order of compulsory retirement of an officer. This is how the Court said:

On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the court from delving into the basis of the order if the order in question is challenged by the concerned government servant as has been held by this Court in Anoop Jaiswal case : (1984)ILLJ337SC.

25. In Anoop Jaiswal v. Government of India :

(1984)ILLJ337SC , this Court said:

It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a clock for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.

(8 of 62) [CW-11039/2010]

26. In Baikuntha Nath Das and Anr. v. Chief District Medical Officer Baripada and Anr.

(1992)ILLJ784SC this Court laid the following principles, which a Court has to keep in mind while considering the question of compulsory retirement:

34. The following principles emerge from the above discussion:

(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior.

(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. 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; is 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 of 62) [CW-11039/2010] Interference is permissible only on the grounds mentioned in (iii) above.

27. In State of U.P. and Anr. v. Abhai Kishore Masta (1995)1SCC336 this Court relied on its earlier decision in Baikuntha Nath Dass case (1992)ILLJ784SC . It was observed that it cannot be said as a matter of law nor can it be said as an invariable rule, that any and every order of compulsory retirement during the pendency of disciplinary proceedings is necessarily penal. It may be or it may be not. It is a matter to be decided on a verification of the relevant record or the material on which the order is based.

28. In a recent judgment in Madan Mohan Choudhary v. The State of Bihar and Ors. (1999)IILLJ229SC this Court was considering the order of compulsory retirement of the appellant, who was a member of superior judicial service in the State of Bihar. On a writ petition filed by the appellant in the High Court challenging his order of compulsory retirement by the Full Court of the High Court, the High Court on the judicial side refused to interfere and dismissed the petition. The appellant came in appeal before this Court. This Court found that while on various earlier occasions remarks were given by the High Court but there were no entries in the character roll of the appellant for the years 1991-92, 1992-93 and 1993-94. The entries for these years were recorded at one time simultaneously and the appellant was categorized as "C" Grade Officer. The date on which these entries were made was not indicated either in the original record or in the counter affidavit filed by the respondent. These were communicated to the appellant on 29.11.1996 and were considered by the Full Court on 30.11.1996. It was clear that these entries were recorded at a stage when the Standing Committee had already made up its mind to compulsorily retire the appellant from service as it had directed the office on 6.11.1996 to put up a note for compulsory retirement of the appellant. This Court held that it was a case where there was no material on the basis of which an opinion could have been reasonably formed that it would be in the public interest to retire the appellant from service prematurely. This Court was of the opinion that the entries recorded (10 of 62) [CW-11039/2010] "at one go" for three years, namely, 1991-92, 1992-93 and 1993-94 could hardly have been taken into consideration. The Court then referred to its earlier decision in Registrar, High Court of Madras v. R. Rajiah AIR1988SC1388 where this Court said that the High Court in its administrative jurisdiction has the power to recommend compulsory retirement of the member of the judicial service in accordance with the rules framed in that regard but it cannot act arbitrarily and there has to be material to come to a decision to compulsorily retire the officer. In that case it was also pointed out that the High Court while exercising its power of control over the subordinate judiciary is under a constitutional obligation to guide and protect judicial officers from being harassed or annoyed by trifling complaints relating to judicial orders so that the officers may discharge their duties honestly and independently unconcerned by the ill-conceived or motivated complaints, made by unscrupulous lawyers and litigants.

30. From the resolutions of the Full Court of December 12, 1995 and January 11, 1996 it is apparent that Jain was retired while under suspension. It appears that the High Court on its administrative side decided to keep disciplinary proceedings against Jain pending for the purpose of imposing the cut on his retiral benefits. The conclusion is obvious that action of the High Court in retiring Jain was based on the allegation of misconduct, which was subject matter of the inquiry before a Judge of the High Court and which appears to us to be the basis for recording of adverse remarks by the High Court in the ACR of the officer for the year 1991-92. There is substance in the argument of Mr. M.N. Krishanamani, learned Counsel for Jain, that the High Court found a short cut to remove Jain from service when the order of retirement was based on the charges of misconduct, subject matter of the inquiry. We agree with Mr. Krishnamani that the impugned order of compulsorily retiring Jain though innocuously worded is in fact an order of his removal from service and cannot be sustained. High Court on its judicial side was correct in setting aside the order compulsorily retiring Jain and allowing the writ petition of Jain to the extent mentioned in the impugned judgment. In this view of the matter it is not necessary for us to (11 of 62) [CW-11039/2010] consider other submissions made before us if Jain could at all have been compulsorily retired under Rule. 3.26 of the Punjab Civil Service Rules, Volume 1, Part 1, being a member of the superior judicial service.

In High Court of Judicature at Patna vs. Ajay Kumar Srivastava and Ors. Civil Appeal No. 8665/2015 decided on 12.1.2017, it has been held as under:-

2. It all boils down to this that there are serious allegations of misconduct on the part of the first Respondent. If that is the case, the Appellant is always at liberty to take appropriate disciplinary action against the Respondent which action according to us, the High Court is duty bound to take. If the officer whose conduct is questionable warranting his removal or compulsory retirement from the service, such an officer cannot simply be sent home with all the retiral benefits. But at the same time, if an officer is to be retired on the ground that his conduct is unwholesome, he is entitled to claim that the due process of law be followed.

In Ajay Kumar Srivastava vs. The High Court of Judicature, Patna and Ors. 2015 SCC OnLine Pat 5942, it has been held as under:-

11. Even after the petitioner was appointed as District & Sessions Judge, it was competent for the High Court to exercise power under Rule 74(b)(ii) of the Bihar Service Code, if the circumstances warranted. Time and again, the Hon'ble Apex Court has been sounding a note of caution that exercise of power of this nature should not be a substitute, or alternative, for initiation of disciplinary proceedings. In a given case, if the Disciplinary Authority feels that it may not be possible to prove the charges, it may be tempted to resort to the power under the provision similar to Rule 74(b)(ii) of the Code. In this regard, the Hon'ble Supreme Court, in Ram Ekbal Sharma v. State of Bihar :

(12 of 62) [CW-11039/2010] A.I.R. 1990 Supreme Court 1368) observed in paragraph 28 as under:

"On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the Government servant who is directed to be compulsorily retire from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the Government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned Government servant as has been held by this Court in Anoop Jaiswal's case. This being the position the respondent-State cannot defend the order of compulsory retirement of the appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of R. 74(b)(ii) of the Bihar Service Code which prima facie does not make any imputation or does not cast any stigma on the service career or the appellant. But in view of the clear and specific averments made by the respondent-State that the impugned order has been made to compulsorily retire the appellant from service under the aforesaid Rule as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the impugned order cannot but be said to have been made by way of punishment. As such, such an order is in contravention of Art. 311 of the Constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bona fide."

In Prabhu Dayal Khandelwal vs. Chairman, U.P.S.C. and Ors. (2015) 14 SCC 427, it has been held as under:-

(13 of 62) [CW-11039/2010]

5. In so far as the issue of non-consideration of the claim of the Appellant is concerned, we are satisfied that the proposition of law relevant for the controversy in hand, was declared upon by this Court in Abhijit Ghosh Dastidar v. Union of India and Ors. : (2009) 16 SCC 146, wherein a three-Judge Division Bench of this Court, held as under:

7. It is not in dispute that CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22.09.1997 and the order of adverse remarks dated 09.06.1998. In view of the said order, one obstacle relating to his promotion goes.

8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion, admittedly the entry of "good" was not communicated to the Appellant. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-

communication of entries in the Annual Confidential Report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision [Dev Dutt v. Union of India and Ors. : (2008) 8 SCC 725] relied on by the Appellant. Therefore, the entries "good" if at all granted to the Appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The Respondent has no case that the Appellant had ever been informed of the nature of the grading given to him.

In High Court of Judicature at Patna, through R.G. vs. Shyam Deo Singh and Ors. (2014) 4 SCC 773, it has been held as under:-

10. In the light of the above, we may now advert to the facts of the present case.

(14 of 62) [CW-11039/2010] It is not in dispute that the adverse remarks/comments dated 15.12.1995 had not been communicated to the Respondent. It is also clear from the materials on record that the standing committee of the High Court in its meeting held on 3.1.1997 had decided to close the matter instead of proceeding any further. The subsequent ACRs of the Respondent for the years 1997-1998 and 2000-2001 are sufficiently positive and depicts the Respondent as an efficient judicial officer with a good reputation for honesty and impartiality. The Respondent was promoted to the post of District and Sessions Judge on 5.9.1998. By Notification dated 17.2.2000 he was promoted to the selection grade of the Bihar Superior Judicial Service with effect from 1.1.1997. Therefore, not only the adverse remark dated 15.12.1995 was not acted upon but subsequent thereto promotion to the highest level in the district judiciary as well as selection grade in the said cadre was granted to the Respondent. Promotion to the higher post of District Judge and placement in the selection grade is on an assessment of positive merit and ability. The said promotion(s), therefore, would have the effect of wiping out the adverse remark dated 15.12.1995. Such a view has in fact been expressed in Brij Mohan Singh Chopra v. State of Punjab : AIR 1987 SC 948 (Para 10).

11. In the light of the above facts, we do not see how the High Court, on the administrative side, can be found to be justified in refusing to continue with the service of the Respondent beyond the age of 58 years. The order dated 20.2.2001 passed by the High Court setting aside the said decision, therefore, will have to be affirmed and the present appeal dismissed. We order accordingly.

In Rajesh Gupta vs. State of J and K and Ors. (2013) 3 SCC 514, it has been held as under:-

20. The principles on which a government servant can be ordered to be compulsorily retired were authoritatively laid down by this (15 of 62) [CW-11039/2010] Court in the case of Baikuntha Nath Das (supra). In Paragraph 34, the principles have been summed up as follows:

34. The following principles emerge from the above discussion:

(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. 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.

(16 of 62) [CW-11039/2010]

Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above.

21. The aforesaid principles have been re- examined and reiterated by this Court in the case of Nand Kumar Verma (supra). The principles have been restated as follows:

34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible for the courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the Appellant was unsatisfactory, has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACRs. There appears to be some discrepancy. We say so for the reason that the Appellant has produced the copies of the ACRs which were obtained by him from the High Court under the Right to Information Act, 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of the ACRs.

36. The material on which the decision of the compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the Appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of (17 of 62) [CW-11039/2010] the matter, we cannot say that the service record of the Appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the Appellant compulsorily from service.

22. In the case of State of Gujarat v. Umedbhai M. Patel (supra), the same principles were reiterated in the following words:

11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:

(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

(v) Even uncommunicated entries in the confidential record can also be taken into consideration.

(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

(18 of 62) [CW-11039/2010]

(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.

(viii) Compulsory retirement shall not be imposed as a punitive measure.

29. The report also does not indicate that there is any irregularity in the bank accounts maintained by the Appellant. The affidavit filed on behalf of the State of Jammu and Kashmir clearly shows that according to the Vigilance Organization, three First Information Reports bearing Nos. 49/91, 11/95 and 63/94 were registered by the State Vigilance Organization against the Appellant when he was posted as Executive Engineer (REW, Kathua). Upon investigation, all the FIRs were found to be "Not Proved". However, recommendation was made to initiate departmental action against the officer. Inspite of the aforesaid recommendation, it has not been disputed before us, that no departmental action was ever initiated against the Appellant. In fact, after the completion of the investigation into the FIRs, the Appellant was promoted to the post of Executive Engineer on 15.12.1996. Therefore, it can be safely concluded that there were no material before the High Powered Committee to conclude that the officer possessed assets beyond his known source of income.

30. This now takes us to the other material on the basis of which the recommendation has been made by the High Powered Committee. It has been noticed by us earlier that the Appellant was required, in the performance of his official duties, to recommend the sanctioning of technical approval to the construction of works of various projects. The allegation with regard to issuing back dated technical sanctions was duly inquired into. The conclusion ultimately reached by inquiry officer noticed in the earlier part of the order indicates that at best the Appellant acted in a casual and haphazard manner in the maintenance of (19 of 62) [CW-11039/2010] records. Such negligence on the part of the Appellant cannot per se lead to the conclusion that the Appellant was acting in such a manner with an ulterior motive. The conclusions reached by the High Powered Committee also do not co-relate to the assessment of work and integrity of the Appellant in the annual performance report. As noticed earlier, in all the annual performance reports, the officer has been rated 'very good', 'excellent' and even 'outstanding'.

31. In view of the aforesaid, the conclusion is inescapable, that the order passed by the State Government suffers from vice of arbitrariness. The High Court erred in arriving at conclusions which were not borne out by the record produced before the High court. In view of the settled law, it is not possible for us to uphold the judgments of the Single Judge as also of the Division Bench.

In Nand Kumar Verma vs. State of Jharkhand and Ors.

(2012) 3 SCC 580, it has been held as under:-

29. In Baikuntha Nath Das v. Chief District Medical Officer : (1992) 2 SCC 299, three Judge Bench of this Court has laid down the principles regarding the Order of Compulsory retirement in public interest:

34. The following principles emerge from the above discussion:

(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.

(20 of 62) [CW-11039/2010]

(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 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. Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above.

30. In Madan Mohan Choudhary v. State of Bihar : (1999) 3 SCC 396, this Court was considering the order of compulsory retirement of the Appellant, who was a Member of the Superior Judicial Service in the State of Bihar. On a writ petition filed by the Appellant in the High Court, challenging his order of compulsory retirement by the Full Court of the High Court, the High Court on the judicial side refused to interfere and dismissed the petition. The Appellant came in appeal before this Court. This Court found that while on various earlier occasions remarks were (21 of 62) [CW-11039/2010] given by the High Court but there were no entries in the character roll of the Appellant for the years 1991-92, 1992-93 and 1993-94. The entries for these years were recorded at one time simultaneously and the Appellant was categorized as 'C' Grade officer. The date on which these entries were made was not indicated either in the original record or in the counter-affidavit filed by the Respondent. These were communicated to the Appellant on 29-11-1996 and were considered by the Full Court on 30-11-1996. It was clear that these entries were recorded at a stage when the Standing Committee had already made up its mind to compulsorily retire the Appellant from service as it had directed the office on 6-11- 1996 to put up a note for compulsory retirement of the Appellant. This Court held that it was a case where there was no material on the basis of which an opinion could have been reasonably formed that it would be in the public interest to retire the Appellant from service prematurely. This Court was of the opinion that the entries recorded "at one go"

for three years, namely, 1991-92, 1992-93 and 1993-94 could hardly have been taken into consideration. The Court then referred to its earlier decision in Registrar, High Court of Madras v. R. Rajiah : (1988) 3 SCC 211, where this Court said that the High Court in its administrative jurisdiction has the power to recommend compulsory retirement of the Member of the judicial service in accordance with the rules framed in that regard but it cannot act arbitrarily and there has to be material to come to a decision to compulsorily retire the officer. In that case it was also pointed out that the High Court while exercising its power of control over the subordinate judiciary is under a constitutional obligation to guide and protect judicial officers from being harassed or annoyed by trifling complaints relating to judicial orders so that the officers may discharge their duties honestly and independently; unconcerned by the ill- conceived or motivated complaints made by unscrupulous lawyers and litigants.

34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the concerned authority but such satisfaction must be based on a valid material. It is permissible for the (22 of 62) [CW-11039/2010] Courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the Appellant was unsatisfactory, has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACR's. There appears to be some discrepancy. We say so for the reason that the Appellant has produced the copies of the ACR's which were obtained by him from the High Court under the Right to Information Act, 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of the ACRs.

36. The material on which the decision of the Compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the Appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the Appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the Appellant compulsorily from service.

37. In Swami Saran Saksena v. State of U.P. :

(1980) 1 SCC 12, this Court has quashed the order of Compulsory retirement of the Appellant, therein, in the public interest, which was found to be in sharp contradiction with his recent service performance and record. This Court observed:

3. Ordinarily, the Court does not interfere with the judgment of the relevant authority on the point whether it is in the public interest to compulsorily retire a government servant. And we have been even more reluctant to reach the conclusion we have, when the impugned (23 of 62) [CW-11039/2010] order of compulsory retirement was made on the recommendation of the High Court itself.

But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second efficiency bar the Appellant was considered to have worked with distinct ability and with integrity beyond question, yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the Appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the Appellant's work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of opinion that the order of compulsory retirement should be quashed. The Appellant will be deemed to have continued in service on the date of the impugned order.

In Madan Mohan Choudhary vs. The State of Bihar (1999) 3 SCC 396, it has been held as under:-

36. Both these decisions were considered by a Three-Judge Bench in Baikuntha Nath Das's case (supra) and were over-ruled and the following five principles were laid down:

"(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior.

(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. 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 (24 of 62) [CW-11039/2010] 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."

37. This decision has since been followed in Posts & Telegraphs Board v. C.S.N. Murthy:

(1993)IILLJ866SC ; Secretary to the Government Harijan & Tribal Welfare Department Bhubaneswar v. Nityananda Pati :

AIR1993SC383 and Union of India v. V.P. Seth : (1994)IILLJ411SC and considered by this Court in M.S. Bindra v. Union of India and Ors., : (1999)ILLJ923SC and again in The State of Gujarat and Anr. v. Suryakant Chunilal Shah : (1999)ILLJ265SC .

38. The fifth principle in Baikuntha Nath Das's case (supra), which has already been extracted above, itself contemplates that the mere circumstance that uncommunicated adverse remarks were taken into consideration would not constitute a basis for interference with an order of compulsory retirement. In para 32 of the Judgment, the learned Judges observed as under:

(25 of 62) [CW-11039/2010] "32. We may not be understood as saying either that adverse remarks need not be communicated or that the representations, if any, submitted by the government servant (against such remarks) need not be considered or disposed of. The adverse remarks ought to be communicated in the normal course, as required by the rules/ orders in that behalf. Any representation made against them would and should also be dealt with in the normal course, with reasonable promptitude. All that we are saying is that the action under F.R.56(j) (or the rule corresponding to it) need not await the disposal or final disposal of such representation or representations, as the case may be. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration. On this account alone, the action under F.R. 56(j) need not be held back. There is no reason to presume that the Review Committee or the government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an opportunity to explain or rebut the same.

Similarly, if any representation made by the government servant is there, it shall also be taken into consideration. We may reiterate that not only the Review Committee is generally composed of high and responsible officers, the power is vested in government alone and not in a minor official It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action. Such an unlikely situation, if indeed present, may be indicative of malice in law. We may mention in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action. (Emphasis supplied) (26 of 62) [CW-11039/2010]

39. These observations indicate that the adverse remarks if recorded in an employee's character roll in the "normal course", ought to be communicated to him and if any representation is made against those remarks, the said representation should be disposed of in the "normal course" but with promptitude. It was further emphasised that the pendency of representation against the adverse remarks or non-disposal of that representation would, however, not prevent the action being taken for compulsory retirement of the employee even on the basis of that entry either under F.R.56(j) or any provision equivalent thereto.

In State of Gujarat vs. Umedbhai M. Patel (2001) SC 3 SCC 314, it has been held as under:-

10. In another decision in J.D. Srivastava vs. State of M.P. & Ors. : (1984)ILLJ344SC , in paragraph 7 of the judgment, it was observed by this Court as under:

"But being reports relating to a remote period, they are not quite relevant for the purpose of determining whether he should be retired compulsorily or not in the year 1981, as it would be an act bordering on perversity to dig out old files to find out some material to make an order against an officer.

"

11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus:

(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

(27 of 62) [CW-11039/2010]

(iii) For better administration, it is necessary to chop off dead-wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

(v) Even uncommunicated entries in the confidential record can also be taken into consideration.

(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.

(viii) Compulsory retirement shall not be imposed as a punitive measure.

12. In the instant case, there were absolutely no adverse entries in respondent's confidential record. In the rejoinder filed in this Court also, nothing has been averred that the respondent's service record revealed any adverse entries. The respondent had successfully crossed the efficiency bar at the age of 50 as well 55. He was placed under suspension on 22.5.1986 pending disciplinary proceedings. The State Govt. had sufficient time to complete the enquiry against him but the enquiry was not completed within a reasonable time. Even the Review Committee did not recommend the compulsory retirement of the respondent. The respondent had only less than two years to retire from service. If the impugned order is viewed in the light of these facts, it could be said that the order of compulsory retirement was passed for extraneous reasons. As the authorities did not wait for the conclusion of the enquiry and decided to dispense with the services of the respondent merely on the basis of the (28 of 62) [CW-11039/2010] allegations which had not been proved and in the absence of any adverse entries in his service record to support the order of compulsory retirement, we are of the view that the Division Bench was right in holding that the impugned order was liable to be set aside. We find no merit in the appeal, which is dismissed accordingly. However, three months' time is given to the appellant-State to comply with the directions of the Division Bench, failing which the respondent would be entitled to get interest at the rate of 18% for the delayed payment of the pecuniary benefits due to him.

In the State of Gujarat & Anr. vs. Suryakant Chunilal Shah (1999) 1 SCC 529, it has been held as under:-

16. A three Judge Bench of this Court in Baikuntha Nath Das and Anr., v. Chief District Medical Officer Baripada and Anr., : (1992) I LLJ 784 SC, laid down the following five principles :

(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior.

(ii) The order has to be passed by the government of 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. 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 (29 of 62) [CW-11039/2010] 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 excommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis of interference."

19. The Court, however, added that the opinion must be based on the material on record otherwise it would amount to arbitrary or colourable exercise of power. It was also held that the decision to compulsorily retire an employee can, therefore, be challenged on the ground that requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds or that it was an arbitrary decision.

25. Purpose of adverse entries is primarily to forewarn the Govt. servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the Govt. servant, to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance.

26. Applying the principles laid down above to the instant case, what comes out is that in compulsorily retiring the respondent from service, the authorities themselves were uncertain about the action which was to be taken ultimately against him. In fact, there was hardly any material on the basis of which a bona fide opinion could have been formed that it (30 of 62) [CW-11039/2010] would be in public interest to retire the respondent from service compulsorily. The material which was placed before the Review Committee has already been mentioned above. To repeat, respondent was promoted in 1981; the character roll entries for the next two years were not available on record; there were no adverse entries in the respondent's character roll about his integrity; he was involved in two criminal cases, in one of which a final report was submitted while in the other a charge sheet was filed. Although there was no entry in his character roll that the respondent's integrity was doubtful, the Review Committee, on its own, probably on the basis of the FIRs lodged against the respondent, formed the opinion that the respondent was a person of doubtful integrity. The review Committee was constituted to assess the merits of the respondent on the basis of the character roll entries and other relevant material and to recommend whether it would be in public interest to compulsorily retire him from service or not. The Review Committee, after taking into consideration the character roll entries and noticing that there were no adverse entries and his integrity was, at no stage, doubted, proceeded, in excess of its jurisdiction, to form its own opinion with regard to respondent's integrity merely on the basis of the FIRs lodged against him. Whether the integrity of an employee is doubtful or not, whether he is efficient and honest, is the function of the Appointing Authority or the immediate superior of that employee to consider and assess. It is not the function of the Review Committee to brand, and that too, off hand, an employee as a person of doubtful integrity. Moreover, the Review Committee did not recommend compulsory retirement. It was of the opinion that the respondent had committed grave irregularity and that he must be retained in service so that he may ultimately be dealt with and punished severely. The Secretary and the Chief Secretary, who considered the recommendations of the Review committee, had other ideas. They thought that the investigation and subsequent prosecution of the respondent would take a long time and that it would be better to immediately dispense with his services by giving him the temptation of withdrawing the criminal cases and retiring him compulsorily from service, provided he does not approach the court against the order of compulsory retirement. This proposal too was not immediately acted upon and it was thought that nobody could say whether the order of compulsory retirement would be challenged by the respondent before the court or he would merely submit to it on (31 of 62) [CW-11039/2010] the temptation that criminal cases against him would be withdrawn. It was at this stage, that the order of compulsory retirement was passed.

27. The whole exercise described above would, therefore, indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a Govt. Servant or that he had lost his efficiency and had become a dead wood, he was compulsorily retired merely because of his involvement in two criminal cases pertaining to the grant of permits in favour of fake and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We may, however, hasten to add that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee.

In Badrinath vs. Government of Tamil Nadu and Ors.

(2000) 8 SCC 395, it has been held as under:-

53. We are however concerned with the first point stated in Brij Mohan Singh Chopra's case as explained and accepted in principle (iv) of para 34 of the three Judge Judgment in Baikunth Nath Das. We have already extracted this passage in principle (iv) of para 34. It reaffirms that old adverse remarks are not to be dug out and that adverse remarks made before an earlier selection for promotion are to be treated as having lost their 'sting'. This view of the three Judge Bench, in our view, has since been not departed from. We shall, therefore, refer to the two latter cases which have referred to this case in Baikunth Nath Das. The second of these two latter cases has also to be explained.

(32 of 62) [CW-11039/2010]

57. Learned senior counsel for the State of Tamil Nadu, Sri C.S. Vaidyanathan has however relied upon the following observations of a two Judge Bench in D. Ramaswami v. State of Tamil Nadu:

(1982)ILLJ349SC (Para 4):

The learned Counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to his promotion. We do not say that the previous history of a government servant should be completely ignored, once he is promoted. Sometimes, past events may help to assess present conduct.

The above-said observation cannot help the respondent inasmuch as, though such remarks need not be altogether omitted from consideration, they must be treated as sufficiently weakened and as having lost their sting. The casein D. Ramaswami's case on facts goes against Mr. Vaidyanathan's contentions. There the appeal of the officer was allowed by this Court. In that case, the officer started as Lower Division Clerk and rose to the position of a Dy, Commissioner of Commercial Taxes. His entire service record contained only one single adverse entry in 1969 which referred to taking money from business people. The inquiry into that complaint ended in his favour, the government dropping the charges in Nov. 1974. In May, 1975 he was offered the selection post of Dy. Commissioner. In September, 1975, he was compulsorily retired. It was held that while his previous record should not be completely ignored, there was nothing in the present conduct casting any doubt on the wisdom of the promotion and there was therefore no justification for needless digging into the past. It was held that the basis of the adverse entry of 1969 was knocked out by the order of the government in November 1974 and the effect of the entry (of 1969) was blotted out by the promotion of the appellant in that case by his promotion as Deputy Commissioner. In the light of the other observations, the said ruling in fact supports the case of Sri Badrinath rather than go against him. Two other cases (33 of 62) [CW-11039/2010] cited in this connection are not relevant on this aspect and we are not referring to them.

58. From the above judgments, the following principles can be summarised:

(1) Under Article 16 of the Constitution, right to be 'considered' for promotion is a fundamental right. It is not the mere 'consideration' for promotion that is important but the consideration must be 'fair' according to established principles governing service jurisprudence.

(2) Courts will not interfere with assessment made by Departmental Promotion Committees unless the aggrieved officer establishes that the non-promotion was bad according to Wednesbury Principles or was it mala fides.

(3) Adverse remarks of an officer for the entire period of service can be taken into consideration while promoting an officer or while passing an order of compulsory retirement. But the weight which must be attached to the adverse remarks depends upon certain sound principles of fairness.

(4) If the adverse remarks relate to a distant past and relate to remarks such as his not putting his maximum effort or so on, then those remarks cannot be given weight after a long distance of time, particularly if there are no such remarks during the period before his promotion. This is the position even in cases of compulsory retirement, compulsory retirement.

(5) If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not (34 of 62) [CW-11039/2010] lost their strength fully so as to be ignored altogether.

(6) Uncommunicated adverse remarks could be relied upon even if no opportunity was given to represent against them before an order of compulsory retirement is passed.

59. On the basis of the above principles, we have to consider whether the Joint Screening Committee applied the correct legal principles of 'fairness'. We have also to apply Wednesbury rule and consider whether relevant facts were not considered and irrelevant facts were considered.

60. In our view, the Committee has not conformed to the standards set in Baikunth Nath Das case as to the manner in which old adverse remarks have to be treated and also as to the manner in which adverse remarks before a previous promotion on merit, should be viewed. The question also is whether trivial matters were exaggerated and positive material in favour of the officer was ignored. We shall now proceed with our reasons as to why the consideration by the Committee which met on 30.8.79 is not fair and why it is liable to be set aside on Wednesbury principles.

(i) Firstly, the assessment starts with a reference to the period in 1957 when appellant was in IAS Training School, before he actually starting working. This reference is rather unusual and it appears to us to be wholly warranted and clearly amounts to "digging up into very old record" not strictly relevant at this distance of time.

(ii) Secondly, due importance was not given in the eleven page report of the Screening Committee to the list of favourable commendations which were compelled to be incorporated in his CRs by the Government of India's letter No. 11018/5/78-AIS(III) dated 29.6.78. These were in fact incorporated in his service record as per Mr. C.V.R. Panikar's letter (35 of 62) [CW-11039/2010] dated 17.3.79 (Public) (Special A) Dept. (D.O. No. 4894/78-1) (P. 108 of Central Govt.'s file).

These aspects which were directed to be incorporated to the by the Central Government are:

(1) His visits to West Germany in 1965 and 1970 (2) His visit to U.K. as guest of the British Government in June 1970 (3) Award of Homi Bhabha Fellowship and visit to Heidelberg University in May 1979 (4) Appreciation letter dated 15.11.64 by Sardar Ujjan Singh, the then Governor of Tamil Nadu in connection with the Flag Day in 1968.

Only a passing reference is made in the proceedings dated 30.8.79 to these remarks.

(iii) Thirdly, several of the adverse remarks recorded during 1973-1977 whether they were general in nature or were particular, were based upon the allegations contained in the four charges which were dropped by the Governor on 28.6.77. Once the charges were dropped, it was obligatory on the part of the Government to delete those adverse remarks which were made prior to 28.6.77 covering the aforesaid period. Unfortunately, these adverse remarks were allowed to continue in the Service Record and were taken into account by the Joint Screening Committee on 30.8.79. These remarks were deleted on 29.5.80 long after the Committee's decision dated 30.8,79. But by that time the damage was done.

In this connection, we are aware of the decision of this Court in Air Vice Marshall S.L Chhabra, VSM(Retd) v. Union of India :

(36 of 62) [CW-11039/2010] AIR1994SC268 . In that case, the officer was denied promotion in the years 1987 and 1988 because of adverse remarks in the appraisal report of 1986. Later, the adverse remarks were expunged in 1989. He was cleared for promotion in 1989. The officer's claim for consideration for promotion from 1988 was accepted by the High Court. That was set aside by this Court. But the difference between that case and the present case is that long before the meeting of the Screening Committee dated 30.8.79, the four charges were dropped by the Governor on 28.6.77 and the adverse remarks for the period from 1973 to 1977 automatically lost their sanctity and should have been selected even before

30.8.79. The deletion was made in 1980 long after the meeting of the Screening Committee. The above decision is clearly distinguishable.

Here, we may also refer to the important analysis made by the Central Government in its note-file. In the office note dated 1.5.79, on the file of the Central Government, which dealt with the earlier recommendation of the Committee presided over by Sri C.V.R. Panikar on 9.6.77 and 28.6.77 the Central Government had made a very critical analysis of the adverse remarks. It said that some of the adverse remarks were closely linked up with the disciplinary cases that were dropped and once the cases were dropped, the adverse remarks which were based on the same allegations, had no legs to stand. It said:

Most of the adverse remarks in CRs of Shri Badrinath during the period from 7074 to 1978 were based on the same ground on which various charges were framed against him. Now that those charges have been dropped, his case needs fresh consideration.

It was again observed in the note dated 19.5.79, that there was direct nexus between the general adverse remarks and the four charges. It said:

Those cases have a bearing on the adverse entries found in the confidential (37 of 62) [CW-11039/2010] reports of Sri Badrinath for the period between 7.2.73 to 31.3.74, 21.7.75 to 31.3.76 and 3.5.76 to 31.3.77.

The Central Government went further referred to the attitude of the State of Tamil Nadu towards the appellant,- as follows:

It is unfortunate that Sri Badrinath who had represented against these adverse remarks and whose representations were rejected by the State Government did not come up to the Government of India with a memorial under Rule 25 of the AIS (Discipline and Appeal) Rules, 1955 which is the only way open for having those remarks, expunged. Instead of doing so, Sri Badrinath made a request for expunction of the adverse remarks contained in these three reports in the present appeal. The present appeal is only against the three orders wherein the State Govt. had promoted Sri Badrinath's juniors to the super time scale of the service. It may still not be late for Sri Badrinath to come up with a memorial to President...

The note further said:

However, I suggest that while remanding the case to the State Government, as proposed, we may suggest that as the basis for the adverse entries contained in these three reports is not any longer valid by virtue of the decision taken by the State Govt. to drop certain inquiries against him, the Selection Committee may not take into account these adverse remarks found in the aforesaid confidential reports while evaluating his performance.

The above comments of the Central Government are a sad commentary on the attitude of the State of Tamil Nadu towards the appellant.

(38 of 62) [CW-11039/2010] A perusal of the above assessment by the Central Government in its note on the earlier Committee's recommendations shows that in the opinion of the Central Government also, the adverse remarks right from 7.2.73 to

31.3.77 ought not to have been considered as they were made keeping in mind the allegations in the pending disciplinary proceedings and once the proceedings were dropped, it was necessary to expunge these remarks. (This was not done, till after the adverse assessment by the Committee was made on 30.8.79.) In fact, the Central Govt. even went to the extent of saying that if the officer had sent up a petition for expunging them - they would have readily acceded to this request.

(iv) Fourthly, the Joint Screening Committee in its decision dated 30.8.79 relied upon very old adverse remarks or comments. Some were made when the appellant was in Training School and in the initial years of his service. Some were made before 1.11.72 on which date the appellant was promoted to selection grade. This was not a fair assessment and is in breach of the principles laid down in Baikunth Nath Das case.

In Narasingh Patnaik vs. State of Orissa (1996) 3 SCC 619, it has been held as under:-

7. In the instant case, after the remarks were made in the confidential reports for the years 1975-76 and 1977-78 the appellant had been promoted on the post of Superintending Engineer in the year 1978 and thereafter Chief Engineer in 1984. It has been pointed out that in respect of years prior to 1975-76, in the year 1976-77 and in the years subsequent to 1977-78 the performance of the appellant was appraised as "good". In these circumstances, we are of the view that the adverse remarks in the annual confidential reports for the years 1975-76 and 1977-78 referred to above, by themselves, cannot sustain the opinion leading to the compulsory retirement of the (39 of 62) [CW-11039/2010] appellant on the basis that further retention of the appellant in service was not in public interest. We are, therefore, unable to uphold the order of compulsory retirement dated March 5, 1986 and the same has to be set aside.

In M.S. Bindra vs. Union of India and Ors. (1998) 7 SCC 310, it has been held as under:-

13. While viewing this case from the next angle for judicial scrutiny i.e. want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials no reasonable man would reach such a conclusion.

While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "Nemo Finit Repente Turpissimus" (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of Administrative Law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity"".

3.3 Therefore, he contended that the judgments which sought to be relied upon by the respondents are not applicable and in rejoinder he relied on following observations in Rajendra Singh Verma (Dead) through L.Rs vs. Lt. Governor of NCT of Delhi and Anr. (2011)10 SCC 1, it has been held as under:-

(40 of 62) [CW-11039/2010]

5. However, by an order dated December 7, 2000 which was served upon Mr. Verma on December 8, 2000, judicial work entrusted to him was withdrawn with immediate effect. He was made in-charge of all the record rooms in Tis Hazari Courts, Delhi. ACRs of four years i.e. from the year 1997 to the year 2000 were not communicated to him on due dates. From the record it is evident that ACRs of Mr. Verma for the years 1997, 1998 and 1999 were written in one go and he was awarded 'C' remark, which means below average. The ACRs for above mentioned three years were communicated to him on January 8, 2001 whereupon he had made representation against the same on February 16, 2001.

6. In the A.C.R. for the year 2000, he was given 'C-' remark, which means his integrity was doubtful. While communicating the ACR for the year 2000, he was given a time of six weeks to make representation against the same. Such communication was received by him on September 25, 2001. On September 21, 2001 the Screening Committee of the High Court decided to retire Mr. Verma compulsorily from service. The Full Court of the Delhi High Court accepted the recommendation made by the Screening Committee in its meeting held on September 22, 2001. After acceptance of recommendation of the Screening Committee by the Full Court, entire work entrusted to him was withdrawn by a letter dated September 24, 2001. He made representation dated September 25, 2001 against the proposed order retiring him compulsorily from service.

He was thereafter served with order dated September 27, 2001 retiring him compulsorily from service with effect from September 28, 2001.

25. What was highlighted in the reply was that for the year 1994-95 the Appellant was granted "C-Integrity Doubtful" whereas for the year 1999 he was granted "C (Below Average)" and for the year 2000 he was granted "C-Integrity Doubtful", and keeping in view the over all assessment of service record, the Screening Committee had recommended that the (41 of 62) [CW-11039/2010] Appellant be prematurely retired from service in public interest forthwith.

35. According to Mr. Rohilla, when he was awaiting the response to his previous representations made with reference to the ACRs for the years 1998 and 1999 and when he was yet to respond to the ACR for the year 2000, he received communication dated September 27, 2001 from the High Court prematurely retiring him from service under Rule 56(j) of the fundamental Rules read with Rule 33 of the Delhi Subordinate Judicial Services. According to him he made a representation requesting the Respondents to supply the material upon which decision was taken to prematurely retire him from service. As he was called upon to make a representation against the ACR for the year 2000 within six weeks from the date of communication dated 21.9.2001, he filed representation dated November 3, 2001 against the same but of No. avail. Ultimately, in the month of March 2002 he filed W.P. No. 1965 of 2002 challenging order of his compulsory retirement from service. Pending the said Writ Petition, the Full Bench of the High Court hearing W.P. No. 4589 of 1995 which was directed against the order of his reversion dated February 15, 1995, allowed the same by judgment dated May 29, 2006. The result was that he stood reinstated to his post of Additional District Judge under Higher Judicial Services.

3.4 In R.C. Chandel vs. High Court of M.P. and Anr. (2012) 8 SCC 58, it has been held as under:-

23. From the counter affidavit filed by the Respondent No. 1 it also transpires that the benefit of super time scale was not given to the Appellant as soon as it became due. Rather, the administrative committee in its meeting held on 25.03.1995, on consideration of the case of the Appellant for grant of benefit of super time scale, deferred his case with remarks, "his work performance and conduct will be kept under watch". The view of the administrative committee was accepted by the Full Court in its meeting held (42 of 62) [CW-11039/2010] on 29.04.1995. The Appellant's case for grant of super time scale was again considered by the Full Court in the subsequent year 1996 and the Full Court in its meeting held on 20/21.04.1996 found that the Appellant was not suitable for grant of super time scale. It was only in 1999 that the Appellant was given super time scale and 2002 that he was granted above super time scale.

7. Learned senior Counsel for the Appellant submitted that compulsory retirement of the Appellant on the basis of an adverse entry recorded in 1989 and two subsequent adverse entries for 1993 and 1994 was wholly unjustified.

As regards 1989 adverse entry, learned senior Counsel submitted that the Appellant was awarded lower selection grade in 1990 and, therefore, the said entry had lost its efficacy. In respect of entries recorded in 1993 and 1994, learned senior Counsel submitted that the said entries also lost their significance since the Appellant was awarded super time scale in 1999 and above super time scale in 2002. In between in 2001, he was allowed to continue in service. Moreover, learned senior Counsel would submit that the adverse remarks recorded in 1993 and 1994 were challenged by the Appellant on the judicial side of the High Court. The Single Judge of that Court accepted the Appellant's challenge and expunged these remarks. The High Court on administrative side challenged the order of the Single Judge in writ appeal. The Division Bench of the High Court although set aside the order of the Single Judge but observed that 1993 and 1994 entries shall not be read adverse to the Appellant for all times to come.

20. A Few other features based on service record of the Appellant highlighted in the counter filed by the Respondent No. 1 in opposition to the writ petition as well as in response to the special leave petition before this Court may be noticed. The Appellant was informed of his having been Assessed in grade "D" for the period 01.04.1981 to 31.03.1982 by communication dated 15.09.1982. The said adverse grading was not assailed by the Appellant and it remained on the record as it is. The Appellant was also intimated on 06.11.1989 about the adverse remarks recorded in his ACR for the period 1988-89 that he never enjoyed clean reputation and that his quality of judgments and (43 of 62) [CW-11039/2010] orders was not satisfactory. The Appellant made representation against the above remarks but the same was rejected and they hold the field as it is. For the period ending 31.03.1992, the Appellant was graded "D" and that grading remains as it is.

22. The High Court on administrative side filed LPA against the judgment and order dated 18.10.1996. The Division Bench of that Court allowed the LPA and set aside the judgment and order of the Single Judge dated 18.10.1996. While doing so the Division Bench in its judgment and order dated 25.02.1997 observed in para 69 as follows:

Before parting with this case in all fairness, we consider it necessary to observe that the adverse remarks on the reputation of Respondent conveyed to him in the relevant years should not haunt him all through his judicial career and hamper his prospects for all times. The above remarks cannot be read to his prejudice in future if he shows improvement in his work and performance and is able to achieve the requisite grade for being admitted to higher Selection Grade. The very purpose of communicating adverse remarks is not to condemn an officer but to caution him at the right time so as to give chance of improvement.

Against the judgment and order dated 25.02.1997 passed by the Division Bench, the Appellant filed a special leave petition before this Court but that was dismissed on 28.04.1997. Thus, adverse remarks for the period ending 31.03.1993 and 31.03.1994 remain as it is.

4. Counsel for the respondent Mr. Sharma has contended that while considering the matter, Hon'ble Chief Justice referred the matter to the Five Judges Committee and out of which one Judge retired and the Committee recommended after considering his service record right from his Judicial journey since 1991. The complaints have been reproduced in affidavit and reply, received (44 of 62) [CW-11039/2010] from 1991, when he first joined and upto year 2010, when he was compulsorily retired, are as follows:-

File No. R/Vig/21/93: When the petitioner was posted as ADJ No.1, Bharatpur, a complaint signed by a number of persons was received wherein it was mentioned that the petitioner was a corrupt officer and deciding the cases by taking bribe and was also favouring one particular advocate. The complaint was filed.

File No. R/Vig/31/93: When the petitioner was posted as ADJ No. 1, Bharatpur, a complaint was made against him that the petitioner appointed one steno after taking bribe of Rs 15000/- the person so appointed was lesser qualified than the complainant. The complaint was filed. File No. R/Vig/29/93: When the petitioner was posted as ADJ No. 1 Bharatpur, a complaint was made against the petitioner by a correspondent of daily news paper Amar Ujala alleging therein that the petitioner was deciding cases after taking bnbe. In the complaint a case was also quoted as an example in which the petitioner acquitted the accused by taking bribe of Rs 100000/-. The complaint was filed.

File No. R/Vig/64/93: when the petitioner was posted as ADJ No 1, Bharatpur, a complaint was made against the petitioner alleging therein that the petitioner was taking bribe for deciding the cases through the Public Prosecutor posted in court of the petitioner. This complaint was also filed. File No. R/Vig/75/93: when the pettioner was posted as ADJ No 1, Bharatpur, a complaint was made against the petitioner alleging therein that the petitioner acquitted the accused persons in sessions case State Vs Chhiter etc. after taking bribe of Rs 100000/-. No order in this complaint was passed in view- of the pendency of the D.B. Criminal Appeal No.391/1992 against the judgment in the said case.

File No. R/Vig/179/93: When the petitioner was posted at ADJ No 1, Bharatpur, a complaint was made against the petitioner alleging that the petitioner did not possess the basic knowledge of Civil Law and did not hear arguments in Civil Cases. As the complainant did not submit any affidavit in support of his complaint and did not turn up the Preliminary Enquiry, hence the complaint was filed.

(45 of 62) [CW-11039/2010] File No. R/Vig/320/93: When the petitioner was posted as ADJ No 1, Bharatpur, a complaint was made against the petitioner by President, Bar Association. Bharatpur, an other complaint made by Members, Bar Association. Bharatpur, another complaint was also made against the petitioner by one advocate Shri Amar Singh from Bharatpur and anonymous was also made. In all these complaints it was alleged by all the complainants that the petitioner, as ADJ No 1, Bharatpur had taken lakhs of rupees in deciding matters. The petitioner had many middlemen who arranged the bribes for the pettioner Some copies of Judgments passed by the petitioner were also enclosed with the complaints as examples of deciding the cases without applying law and procedure but only after taking bribe in the matters. All these complaints were enquired into together in the enquiry No. R/Vig/320/93. Statements of advocates of Bharatpur were recorded. After enquiry it was Found that although, the advocates of Bharatpur had stated in their statements about the general reputation of the petitioner but could not sight any specific incident in which the petitioner took bribe from any particular person for deciding any particular case, hence these complaints were also filed. File No. R/Vig/62/93: When the petitioner was posted as ADJ No 1, Bharatpur, a complaint was made against the petitioner by a complainant that the petitioner was habitual of taking bribe for deciding cases in favour of the concerning parties Preliminary enquiry was conducted by the District Judge Bharatpur but no particular case was clarified in which the petitioner took bribe and that too by whom the amount was paid to the petitioner. This complaint was also filed.

File No. R/Vig/262/95: when the petitioner was posted as ADJ, Sikar, a complaint was made against the petitioner alleging therein that the petitioner was notorious for deciding the cases after taking illegal gratification. It was also stated that in a sessions case State Vs. Babulal u/s 302 lPC, the petitioner settled down Rs.2,50,000/- through his Steno Ahdul Rashid, as an amount of bribe to acquit the accused, named Dayanath. The complaint was filed.

File No. R/Vig/203/97: When the petitioner was posted as Spl. Judge, NDPS Cases. Chittorgarh, a complaint was made against the petitioner by one Laduram Toshniwal, President. Chittorgarh Zila Upbhokta Sanrakshan samiti alleging therein that the petitioner had illegally authorised one Mr. (46 of 62) [CW-11039/2010] Manohar Singh Dutt to he Public Prosecutor in that court and the petitioner used to take bribe through Manohar Singh Dutt for deciding cases. This complaint was also filed.

File No. R/Vig/129/2000: when the petitioner was posted as Judge, MACT, Udaipur, a complaint was made against the petitioner by number of advocates alleging therein that the petitioner decided cases dishonestly and the petitioner also used to decide the cases discriminately according to the parties and advocates appearing in his Court. The complaint was enquired into and the same was filed.

File No. R/Vig/206/2000: when the petitioner was posted as Judge, MACT, Udaipur, petitioner's wife Mrs. Neena was caught by the police on 19.06.2000 and registered a case No. 780/2000 uls 109 Cr.P C. for the allegation, that on 19.06.2000, petitioners wife Mrs. Neena went to Mansi Jewellery Showroom Udaipur and impersonating herself as wife of some l.P.S. Officer, she attempted to commit cheating with the manger of Mansi Jewellery Showroom by persuading him to hand over jewelry worth Rs.5 lac on credit. Petitioners wife was taken into the custody for further interrogation. But the petitioner misusing his power. position and official capacity, managed to release his wife.

File No. R/Vig/81/2001: When the petitioner was posted as Judge. MACT, Udaipur, a complaint was made against the petitioner by one Shri Motilal Yadav, who was injured in a road accident and submitted a claim petition in the court of the petitioner. The complainant made allegations against the petitioner that he was unnecessarily harassed and he was denied early and speedy justice. The same was filed.

File No. R/Vig/29/2002: A complaint was made by one Shri Satyanarain resident of Kapasan, to the effect that one Maruti 800 car registration No. NDA-Q-5401 bearing a red light committed a road accident and thereby causing fracture in the leg of his daughter aged 11 years and permanent disability. The complainant found that the car causing accident belonged to the petitioner who was at that time Judge, MACT, Udaipur. The complainant also mentioned in his complaint that the petitioner got his car number changed to RJ27- C- 8510 and that too in the name of his wife. Complainant lodged FIR No 36/99, P. S. Kapasan, District Chittorgarh but the petitioner misusing his (47 of 62) [CW-11039/2010] power and position managed to interfere in the investigation and because of this interference. the police did not seize the vehicle. When the complainant contacted the petitioner, the petitioner threatened the complainant. This complaint was inquired into by the Registrar (Vigilance). Complainant and his witnesses in their statement corroborated the facts mentioned in the complaint. The petitioner was directed to co-operate in the investigation and the investigating Officer was directed to submit the result of the investigation. After investigation, negative final report was submitted in the Court and this complaint was filed. File No. R/Vig/51/2002: When the petitioner was posted as Spl. Judge, CBI Cases. Jodhpur, a complaint was made against the petitioner by Mr. C.D. Sandu (Sr.P P., BL Jodhpur), Mr. C.L. Mali & Mr. S.S. Yadav, PPs, CBI, Jodhpur wherein it was alleged that the petitioner did not take action in old cases and gave unnecessary adjournments. Furthermore, the statements of witnesses who appeared in the Court of the petitioner from distant places for recording the evidence, were not recorded and the cases were adjourned without any good cause. The statements of witnesses were being recorded wrongly, so as to favour the defence party. In the complaint it was requested that Presiding Officer, like the petitioner should immediately be transferred and some other judicial officer with good reputation should be posted there. After the transfer of the petitioner from the CBI Court, this complaint was filed. File No. R/Vig/21/2002: When the petitioner was posted as Special Judge. CBl Cases, Jodhpur, a complaint was made against the petitioner by Mr. C.L.Mali, Sr.P P., CBI. Jodhpur to the effect that the petitioner used to record statement of witnesses in twisted manner. It was also mentioned that in some cases the petitioner terrified and humiliated the witnesses. The complainant cited details of some cases as examples. However, because the complaint was not supported by an affidavit, hence the same was filed.

File No. R/Vig/380/2003: when the petitioner was posted as Judge, Family Court No.2, Jaipur, a complaint signed by a number of women was made against the petitioner with the allegation of corruption and misbehavior of the petitioner. The request was to get the petitioner transferred from that court, so that the interest of women parties in the court of the petitioner be protected from the corruption and misbehavior of the petitioner. Because no specific allegations were made and the (48 of 62) [CW-11039/2010] addresses of the complainants were also not there in the complaint, hence, the complaint was filed. File No. R/Vig/ 375/2005: When the petitioner was posted as District & Sessions Judge. Jhalawar, a complaint was made against the petitioner that the petitioner did not take action to execute a decree. Looking to the allegation made in the complaint. the same was filed.

File No. R/Vig/79/2006: When the petitioner was posted as District & Sessions Judge. Jhalawar, an anonymous complaint was made against the petitioner on behalf of the public at large and Bar Association, Jhalawar regarding corruption by the petitioner in deciding the cases. However, no specific incidence was shown in the complaint, hence, the same was filed.

File No. R/Vig/516/2007: When the petitioner was posted as District & Sessions Judge, Bharatpur, a complaint was made against the petitioner by four persons Sahib Singh, Puran, Laxman & Surendra alleging therein that a case was registered u/s 363, 366 A & 376 lPC on complaint in the court of ACJM No.1 against which revision petition was pending in the Court of Spl. Judge, Bharatpur. Two accused persons namely Dalveer and Himmat were granted anticipatory bail by the petitioner taking bribe of Rs.2,50,000/- and four gold bangles through middlemen advocate Shri Govind Singh Dagur and ACJM No. 3. Bharatpur Shri V.S. Mehlawat. Whereas, bail application of two other accused in the same case, Surendra & Puran were not heard by the petitioner and the same was transferred to Special Judge, Bharatpur who later on rejected the same. The complaint was inquired into by the Registrar (Vigilance) and the same was filed after compulsory retirement of the petitioner.

File No. R/Vig/385/2008: when the petitioner was posted as Member Secretary, Rajasthan State Legal Services Authority. Jaipur, a complaint was made against the petitioner alleging that Legal Service Programs are not being carried out properly in the State. An aggrieved person can hardly enter in the chamber of the Member Secretary. No attendance register is kept and no daily diary is maintained by the officer. The Government vehicles provided for the official work are being used for personal travelling. No one is there to listen to the grievances of the common people. The complaint was not supported by an affidavit, hence, the same was filed.

(49 of 62) [CW-11039/2010] File No. R/Vig/98/2010: when the petitioner was posted as Judge, Family Court, Ajmer, a complaint was made against the petitioner alleging therein that the petitioner did not sit in the court and the Munsrim of the Court was running the court. In the matter of Meena Vs. Ashok u/s 125(3) Cr. P.C., the applicant moved an application to get the arrears of Maintenance Allowance, but Mr. Vijay Karan Maheshwari, the Munsrim dismissed the application and the P.O. did not do anything in the matter. As the petitioner was retired compulsorily, hence, the same was filed.

5. He also contended that while considering the matter being of a serious nature regarding Udaipur, no doubt it is of 1990, but he was allowed to continue till 2000 but the report of Registrar (Vigilance) which has been approved by the Administrative Judge with the following remarks:-

"Perused the report. Since, the Police Officers have left her only by taking action u/s 109 Cr.P.C, they will not deposed in support of the real story. I am told the officer has since been transferred to CBI Court, Jodhpur. In my opinion, the officer should be transferred and posted to a place where his wife will not be able to do such things. He should be posted in interior rural area in court having small number of cases."

5.1 Mr. Sharma, Senior counsel for the respondent has strongly relied upon the decision of the Supreme Court in Rajendra Singh Verma (supra) wherein it has been held as under:-

145. So far as the present cases are concerned, this Court finds that there are No. words in the orders of compulsory retirement, which throw any stigma against the two Appellants and the deceased officer. Therefore, it is not necessary for this Court to make inquiry into the Government files to discover whether any remark amounting to stigma could be found in the files. The reason is that it is the order of compulsory retirement, which alone is (50 of 62) [CW-11039/2010] for examination. If the order itself does not contain any imputation or charge against the two Appellants and the deceased officer, the fact that considerations of misconduct or misbehaviour weighed with the High Court in coming to its conclusion to retire them compulsorily does not amount to any imputation or charge against them. It is not established from the order of compulsory retirement itself that the charge or imputation against the Appellants was made a condition for exercise of the power. Therefore, the orders of retirement cannot be considered to be one for dismissal or removal in the nature of penalty or punishment.

149..In State of U.P. and Anr. v. Bihari Lal :

(1994) Supp (3) SCC 593, this Court has taken the view that even an adverse entry which has been set aside in appeal on technical grounds could also be taken into consideration. The plea that since the last entry, i.e., 'C-Integrity Doubtful' for the year 2000 was communicated almost around the same time when the order of compulsory retirement was communicated and as the Appellants had No. opportunity to represent against the same, it ought not to have been taken into consideration and that the consideration of the said last adverse entry vitiates the order of compulsory retirement has No merits.

150. This Court has consistently taken the view that an order of compulsory retirement is not a punishment and does not have adverse consequence and, therefore, the principles of natural justice are not attracted. What is relevant to notice is that this Court has held that an un-communicated adverse A.C.R. on record can be taken into consideration and an order of compulsory retirement cannot be set aside only for the reason that such un- communicated adverse entry was taken into consideration. If that be so, the fact that the adverse A.C.R. was communicated but none of the Appellants had an opportunity to represent against the same, before the same was taken into consideration for passing order of compulsory retirement, cannot at all vitiate the order of compulsory retirement.

(51 of 62) [CW-11039/2010]

151. In State of U.P. and Anr. v. Biharilal (supra), this Court has ruled that before exercise of the power to retire an employee compulsorily from service, the authority has to take into consideration the overall record, even including some of the adverse remarks, though for technical reasons, might have been expunged on appeal or revision. What is emphasised in the said decision is that 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 power of judicial review. According to this Court, what is needed to be looked into is whether a bona fide decision is taken in the public interest to augment efficiency in the public service.

161. In Baikuntha Nath Das case, after referring to decision of this Court in Brij Mohan Singh Choprav. State of Punjab : (1987) 2 SCC 188, where a three Judge Bench of this Court has specifically affirmed the decision rendered in Union of India v. M.E. Reddy : (1980) 2 SCC 15, this Court has laid down following firm proposition of law stated in paragraph 34 of the reported decision:

34. The following principles emerge from the above discussion:

(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. 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 (52 of 62) [CW-11039/2010] 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.

Interference is permissible only on the grounds mentioned in (iii) above.

183. It is well settled by a catena of decisions of this Court that while considering the case of an officer as to whether he should be continued in service or compulsorily retired, his entire service record upto that date on which consideration is made has to be taken into account. What weight should be attached to earlier entries as compared to recent entries is a matter of evaluation, but there is No. manner of doubt that consideration has to be of the entire service record. The fact that an officer, after an earlier adverse entry, was promoted does not wipe out earlier adverse entry at all. It would be wrong to contend that merely for the reason that after an earlier adverse entry an officer was promoted that by itself would preclude the authority from considering the earlier adverse entry. When the law says that (53 of 62) [CW-11039/2010] the entire service record has to be taken into consideration, the earlier adverse entry, which forms a part of the service record, would also be relevant irrespective of the fact whether officer concerned was promoted to higher position or whether he was granted certain benefits like increments etc.

218. On a careful consideration of the entire material, it must be held that the evaluation made by the Committee/Full Court, forming their unanimous opinion, is neither so arbitrary nor capricious nor can be said to be so irrational, so as to shock the conscience of this Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions, a vast range of multiple factors play a vital and important role and No. one factor should be allowed to be blown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. 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 real injustice, 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.

5.2 He has also relied upon the aforesaid decision to distinguish the judgment referred by the petitioner in the case of R. Rajiah (supra) and Ishwar Chand (supra) observing as under:-

125. Again in the case of Registrar, High Court of Madras v. R. Rajaiah, : (1988) 3 SCC 211, the High Court had decided to compulsorily retire the Respondents but had not communicated the recommendations to the Governor for passing formal orders of compulsory retirement. Instead the High Court had passed the orders of compulsory retirement under FR 56 (d). As there was No. formal order by the Government under FR 56

(d), this Court held that the impugned orders of the High Court were ineffective. Ultimately, (54 of 62) [CW-11039/2010] this Court did not interfere with the view expressed by the Division Bench of the High Court on merits of the matter and held that the High Court was perfectly justified in quashing orders of compulsory retirement. However, this Court considered the scope of Article 235 of the Constitution and held that the test of control is not the passing of an order against a member of the subordinate judicial service, but the power to take such decision and action.

126. The Court in Rajiah case explained that so far as the members of the subordinate judicial service are concerned, it is the Governor, who being the appointing authority, has to pass an order of compulsory retirement or any order of punishment against such a member, but passing or signing of such orders by the Governor will not necessarily take away the control of the High Court vested in it under Article 235 of the Constitution. This Court further explained that an action against any Government servant consists of two parts.

Under the first part, a decision will have to be made whether an action will be taken against the Government servant and in the second part, the decision would be carried out by a formal order. Having explained this, this Court proceeded to hold that the power of control envisaged under Article 235 of the Constitution relates to the power of making a decision by the High Court against a member of the subordinate judicial service and such a decision is arrived at by holding an enquiry by the High Court against the member concerned, and after the High Court comes to the conclusion that some action either in the nature of compulsory retirement or by the imposition of a punishment, as the case may be, has to be taken against the member concerned, the High Court will make a recommendation in that regard to the Governor and the Governor will act in accordance with such recommendation of the High Court by passing an order in accordance with the decision of the High Court. What is ruled by this Court is that the Governor cannot take any action against any member of a subordinate judicial service without and contrary to the recommendation of the High Court.

(55 of 62) [CW-11039/2010]

191. Further in case where the Full Court of the High Court recommends compulsory retirement of an officer, the High Court on the judicial side has to exercise great caution and circumspection in setting aside that order because it is a complement of all the judges of the High Court who go into the question and it is possible that in all cases evidence would not be forth coming about doubtful integrity of a Judicial Officer. As observed by this Court in High Court of Punjab & Haryana through R.G. v. Ishwar Chand Jain and Another, :(1999) 4 SCC 579, at times, the Full Court has to act on the collective wisdom of all the Judges and if the general reputation of an employee is not good, though there may not be any tangible material against him, he may be given compulsory retirement in public interest and judicial review of such order is permissible only on limited grounds. The reputation of being corrupt would gather thick and unchaseable clouds around the conduct of an officer and gain notoriety much faster than the smoke. Sometimes there may not be concrete or material evidence to make it part of the record. It would, therefore, be impracticable for the reporting officer or the competent controlling officer writing the confidential report to give specific instances of shortfalls, supported by evidence.

192. Normally, the adverse entry reflecting on the integrity would be based on formulations of impressions which would be result of multiple factors simultaneously playing in the mind. Though the perceptions may differ in the very nature of things there is a difficulty nearing an impossibility in subjecting the entries in the confidential rolls to judicial review. Sometimes, if the general reputation of an employee is not good though there may not be any tangible material against him, he may be compulsorily retired in public interest. The duty conferred on the appropriate authority to consider the question of continuance of a judicial officer beyond a particular age is an absolute one. 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 (56 of 62) [CW-11039/2010] 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.

5.3 He also relied upon the decision of Supreme Court in R.C. Chandel (supra) wherein it has bee held as under:-

19. In Rajendra Singh Verma : (2011) 10 SCC 1, this Court restated what has been stated in earlier decisions that compulsory retirement from service is neither dismissal nor removal; it differs from both of them, in that it is not a form of punishment prescribed by the rules and involves no penal consequences inasmuch as the person retired is entitled to pension and other retiral benefits proportionate to the period of service standing to his credit. An order of compulsory retirement being not an order of adverse consequence, principles of natural justice have no application. This Court took into consideration a long line of cases including State of U.P. and Anr.

v. Bihari Lal : 1994 (Supp) 3 SCC 593, Union of India v. V.P. Seth and Anr. (1994) SCC (L&S) 1052, Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. : (1992) 2 SCC 299, Baidyanath Mahapatra v. State of Orissa and Anr. : (1989) 4 SCC 664, Union of India v. Col. J.N. Sinha and Anr. : (1970) 2 SCC 458, All India Judges' Association (1) v. Union of India and Ors. : (1992) 1 SCC 119 and All India Judges' Association (2) : (1993) 4 SCC 288 and culled out the legal position in paragraph 183 (Pg. No. 75) of the Report as follows:

183. It is well settled by a catena of decisions of this Court that while considering the case of an officer as to whether he should be continued in service or compulsorily retired, his entire service record up to that date on which consideration is made has to be taken into account. What weight should be attached to earlier entries as compared to recent entries is a matter of evaluation, but there is no manner of doubt that consideration has to be of the entire service record. The fact that an officer, after an earlier adverse entry, was (57 of 62) [CW-11039/2010] promoted does not wipe out earlier adverse entry at all. It would be wrong to contend that merely for the reason that after an earlier adverse entry an officer was promoted that by itself would preclude the authority from considering the earlier adverse entry. When the law says that the entire service record has to be taken into consideration, the earlier adverse entry, which forms a part of the service record, would also be relevant irrespective of the fact whether the officer concerned was promoted to higher position or whether he was granted certain benefits like increments, etc.

26. It is true that the Appellant was confirmed as District Judge in 1985; he got lower selection grade with effect from 24.03.1989; he was awarded super time scale in May, 1999 and he was also given above super time scale in 2002 but the confirmation as District Judge and grant of selection grade and super time scale do not wipe out the earlier adverse entries which have remained on record and continued to hold the field. The criterion for promotion or grant of increment or higher scale is different from an exercise which is undertaken by the High Court to Assess a judicial officer's continued utility to the judicial system. In Assessing potential for continued useful service of a judicial officer in the system, the High Court is required to take into account the entire service record. Overall profile of a judicial officer is the guiding factor. Those of doubtful integrity, questionable reputation and wanting in utility are not entitled to benefit of service after attaining the requisite length of service or age.

29. 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 (58 of 62) [CW-11039/2010] 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.

33. The conduct of the Appellant in involving an M.P. and the Ministry of Law, Justice and Company Affairs, in a matter of the High Court concerning an administrative review petition filed by him for expunging adverse remarks in ACRs of 1993 and 1994 is most reprehensible and highly unbecoming of a judicial officer. His conduct has tarnished the image of the judiciary and he disentitled himself from continuation in judicial service on that count alone. A Judge is expected not to be influenced by any external pressure and he is also supposed not to exert any influence on others in any administrative or judicial matter. Secondly and still worst, the Appellant had an audacity to set up a plea in the rejoinder that he never made any representation to Shri R.K. Malaviya, M.P. for any purpose whatsoever. But for the Appellant's approaching Shri R.K. Malaviya and his request for help, Shri R.K. Malaviya would have never written the letter quoted above to the then Minister of State for Law, Justice and Company Affairs. On this ground also his writ petition was liable to be dismissed.

5.4 He further contended that in view of the affidavit and reply which has been filed by the High Court wherein it has stated as under:-

"It may also be stated taht the Committee of Hon'ble Judges constituted by Hon'ble Chief Justice under Rule 53(1) of the Rules of 1996 vide order No.29 dated 19.09.2003 which was reconstituted vide order dated 14.06.2004, to consider and scrutinize the cases of judicial officers having considered the service record etc. Of the petitioner and number of other officers of (59 of 62) [CW-11039/2010] Rajasthan Higher Judicial Service was of the view that their cases for compulsory retirement be deferred. Thus, the claim made by the petitioner that in the year 2003 the said Committee and Full Court of Rajasthan High Court on consideration of the petitioner's case did not find any ground at all for compulsory retirement of the petitioner is not admitted as such."

5.5 Therefore, the claim of the petitioner that in the year 2003 his case was not recommended is not correct. It was only deferred and it has been considered subsequently.

5.6 He further empahsised that after consideration of the Full Bench decision and in view of the observation of the Supreme Court in Rajendra Singh Verma (supra) while considering the matter on judicial side, the High Court should be slow in disturbing the decision which has been taken by the Full Court. The collective decision which has been considered looking to the overall conduct of the judicial officer, in that view of the matter, while considering the matter, this court should consider all aspects of the case and looking to the overall circumstances which have been considered by the Full Court in 2010 may not be reviewed by this court while considering the matter on judicial side.

6. Before proceeding with the matter, it will not be out of place to mention that the matter was earlier placed before the different benches wherein one of us (Hon'ble Mr. Justice K.S. Jhaveri) was a party on 29.9.2016 and 24.11.2016 and matter was adjourned.

6.1 However subsequently, it appears that the matter was heard by the Division Bench on 28.3.2017 where following order was (60 of 62) [CW-11039/2010] passed which we are reproducing to establish that the decision taken in 2010 by the Full Court was not inappropriate:-

"We have heard the matter yesterday for quite some time but today we took the matter and at the stage of arguments Brother Justice Kailash Chandra Sharma wants to recuse from hearing the matter. List before the Bench of which one of us (Justice Kailash Chandra Sharma) is not a member."

6.2 Prima facie, it seems from the order passed on 28.3.2017, which was further listed on 19.9.2017, when the matter was heard and judgment was reserved. However, one of the Judge has to recuse the matter on 4.10.2017. We are not commenting on this.

The Full Court decision is not thoroughly useless in view of two orders where after reserving judgment one of the judge has to recuse from the matter speaks volume of the character of the petitioner.

6.3 In our considered opinion, the remarks made in 2010 by the Administrative Judge was fair enough to take immediate action but it is well known to everyone that the judicial officers are protected by one or the other reasons which led to mockery of justice for 10 years.

6.4 At this stage, we may reproduce the remarks made by the Senior most judge on 5.5.2008 which reads as under:-

The brief summary of complaints prepared by Registrar General (Vig) marked 'x' for identification purposes, reflects that by his acts and omissions, in the last 15 years, Mr. A. K. Tyagi has not earned good reputation. Some very serious complaints could not be taken to logical conclusion because of lapse of (61 of 62) [CW-11039/2010] time or his transfer. File No. R/9/v/206/2000 is a glaring example of judicial impropriety on part of Mr. A. K. Tyagi and securing release of his wife, although she was caught red handed at a jewelry shop in a criminal act, by misusing his office. The note dated 03.08.2000 prepared by the then RG(Vig) Shri Bhanwaroo Khan who now happens to be a sitting judge of this Court is eloquent enough about the misconduct of Mr. A. K. Tyagi. A probe at this distance of time may not be of any use. However, this judicial officer in the background of large number of complaints from time to time, may not be given important judicial work and rather, may be kept on deputation.

The summary of complaints (marked 'X') prepared by Registrar General vigilance may be kept in the service file of Mr. A. K. Tyagi The opinion of the Hon'ble Chief Justice(Acting) vide note dated 22.12.2007 and the present note be also kept in the service record of Mr. A. K. Tyagi.

6.5 Therefore, the petitioner was wrongly allowed to continue for almost 10 years. Now the first argument that he was not considered in 2003 is not supported by evidence. In 2003 his case was deferred. The main contention of the petitioner was that he was never communicated with the complaints. However, if we look at the incident of the Udaipur which has mainly weighed with us and the evidence which we have reproduced hereinabove, it was within his complete knowledge and he had taken every precaution that complaint may not be acted upon against him and it seems that he has misused his office.

7. In our considered opinion, such an officer ought not to have continued for 10 years even after later part of the year when whole Administrative Committee and the Full Court have found that the officer is not required to continue. Even otherwise, he was to attain the age of superannuation in 2011 whereas out of that (62 of 62) [CW-11039/2010] year he has already got the salary of three months therefore, not much difference is required to be paid. It is only for the sake of reputation, however right from the year he born as Judge in 1991 every year complaint has been received against him from different places as reproduced hereinabove, in that view of the matter, the decision which has been taken by the Full Court that the officer is not of good knowledge and reputation is just and proper and in such decision of Full Court, it will not be appropriate to hold otherwise in favour of the petitioner.

8. Looking to the facts of the case, we are in complete agreement with the decision taken on administrative side and such an officer is rightly compulsorily retired and ought not to have been continued as judicial officer. We feel regret that it was only after 2000, that was his best time, therefore, he continued.

The petition stands dismissed.

(VIJAY KUMAR VYAS),J. (K.S. JHAVERI),J.

Bm gandhi 48.

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Rajasthan High Court - Jaipur