Supreme Court - Daily Orders
High Court Of Judicature At Patna vs Ajay Kumar Srivastava . on 1 December, 2016
Bench: Chief Justice, D.Y. Chandrachud
1
ITEM NO.105 COURT NO.1 SECTION XVI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 8665/2015
HIGH COURT OF JUDICATURE AT PATNA Appellant(s)
VERSUS
AJAY KUMAR SRIVASTAVA AND ORS. Respondent(s)
(with interim relief and office report)
Date : 01/12/2016 This appeal was called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
For Appellant(s) Mr. P.H.Parekh, Sr. Adv.
Mr. E.R.Kumar, Adv.
Mr. Kshatrashal Raj, Adv.
Mr. Vishal Prasad, Adv.
Mr. Abhishek Deshmukh, Adv.
Mr. Akash Jindal,Adv.
M/s. Parekh & Co.,Adv.
For Respondent(s) Mr. Amit Anand Tiwari,Adv.
Ms. Vagda Galhotra, Adv.
Mr. Abhinav Raghuvanshi, Adv.
Mr. Vinayak Gupta, Adv.
Mr. Samir Ali Khan,Adv.
State of Bihar Mr.Rudreshwar Singh, Adv.
Mr. Gopal Jha, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Respondent No. 1 who was at the relevant point of time a District and Sessions Judge in the Bihar Higher Judicial Services compulsorily retired in exercise of the powers vested with the Signature Not Verified Digitally signed by OM Government on the recommendation made to that effect with the High PARKASH SHARMA Date: 2016.12.03 12:54:26 IST Reason: Court of Judicature at Patna. The High Court has, in terms of the impugned judgment, quashed the order of compulsorily retirement. 2 The High Court has taken the view that the decision to compulsorily retire the respondent was not justified in the facts and circumstances of the case. The present appeal questions the correctness of the said judgment.
From a perusal of the record, we find that the performance of the respondent has been assessed as good or very good for all the previous years except one when it was assessed as average. The averments made in paras 18 and 47 of the counter affidavit filed by the High Court in the writ petition clearly support this position. Para 47 is as under:
“That the statement made in Para 7 of the Supplementary Affidavit it is stated that from perusal of the records it is apparent that in June, 1998, the then Hon'ble Inspecting Judge of the Purnea Judgship has assessed the petitioner 'below average' but that was not related to integrity and after that he has always been assessed 'good' and very good'.
Along with the counter affidavit filed by respondent No. 1 before this Court is enclosed an inspection report drawn by the Inspecting Judge of Jehanabad Judgeship where respondent No. 1 was posted immediately before his compulsory retirement. The Inspecting Judge has while dealing with the work and conduct of the respondent observed as under:
(i) Sri Ajay Kumar Srivastava, District & Sessions Judge, Jehanabad He joined the judgeship of Jehanabad on 14.02.2012. He has proved to be an able Officer with good knowledge of law. I found him having requisite 3 amount of maturity and administrative skills. He is providing requisite leadership to the judicial officers. In the monthly meeting of the Judicial Officers, his attempts are always to inspire them for improving their disposal rate and to find out the reason in case any of the officers has not been able to meet his target. I have found him taking keen interest in over all improvement of Judgeship. While sitting with him in the court room, I found him well prepared for the case. I also found him efficient in the court management as the atmosphere in the court room was very congenial. During the inspection, he was hearing Title Appeal No.13 of 2012 in the matter of easement right for passage. I sat in his court room for some time. I have also perused the Judgments delivered by him in Sessions Trial No.190/2010. Cr. Appeal No.51/2012, Cr.appeal No.62/12 and Misc. Appeal No.13/11. His judgments are good on facts and law.” It was argued on behalf of the respondents that neither his record nor the work and conduct assessed by the Inspecting Judge prior to the passing of the compulsory retirement order supports the view taken by the High Court that respondent No. 1 had outlived his utility. The High Court was on the judicial side perfectly justified in holding that the compulsory retirement order was legally unsustainable.
Mr.P.H.Parekh, learned senior counsel for the High Court however made a two fold submission. Firstly he contended that the respondent had been proceeded against for misconduct and awarded a punishment of being reduced to the lowest of the pay scale which brought him to the bottom of the cadre in which he was working. 4 This, according to Mr. Parekh, was a relevant consideration to be kept in view apart from other circumstance in support of the conclusion that he had outlived his utility. It is, however, significant to mention that the incident in connection with which he was so punished related to the year 2000-2001. More importantly, respondent No. 1 had been promoted as District Judge once again on 30th September, 2011 which implied that his work, conduct and performance was found to be satisfactory and worthy of entitling him to promotion. Even when the earlier punishment may have been relevant, the subsequent promotion too was relevant for determination of his over all utility.
Mr. Parikh argued that apart from his record and the previous disciplinary proceedings which the High Court appear to have considered, there may be some other material also which the High Court may have taken into consideration. He seeks time to verify whether there was any such material and to produce the same.
Although the counter affidavit filed by the High Court in the writ petition has not referred to nor even the SLP makes any such reference to any such material, we see no reason to deny to Mr. Parikh, an opportunity to look for other material that the High Court may have considered and to produce the same before us.
List again on Tuesday i.e. 06.12.2016.
Needful be done in the meantime.
(Shashi Sareen) (Veena Khera) AR-cum-PS Court Master