Rajasthan High Court - Jaipur
Jagdish Prasad Sharma vs State Of Raj & Ors on 17 August, 2016
Author: Ajay Rastogi
Bench: Ajay Rastogi
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D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011
Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH, JAIPUR
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D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011
Petitioner:
Jagdish Prasad Sharma S/o Shri Kanhaiya Lal Sharma, aged 50
years R/o Mehendi Ka bass, Amer, Jaipur.
VERSUS
Respondents:
1. State of Rajasthan through Principal Secretary, Department
of Personnel, Government of Rajasthan, Jaipur.
2. State of Rajasthan through the Principal Secretary to the
Government, Law and Legal Affairs Department,
Government of Rajasthan, Secretariat, Jaipur, Rajasthan.
3. High Court of Judicature for Rajasthan through its Registrar
General of Jodhpur, Jodhpur, Rajasthan.
Judgment reserved on : 28th July, 2016
Date of Judgment : 17th August, 2016.
HON'BLE MR.AJAY RASTOGI,J.
HON'BLE MR.JAINENDRA KUMAR RANKA,J.
REPORTABLE
Mr.SHOBHIT TIWARI ]
Mr.DIVESH SHARMA ] Counsel for the Petitioner.
Mr.S.K.GUPTA, Additional Advocate General with
Mr.ANIKET VYAS, Counsel for respondent-State.
Mr.A.K.SHARMA, Senior Counsel assisted by
Mr.V.K.SHARMA, Counsel for the Respondent No.3.
JUDGEMENT
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BY THE COURT (Per Hon'ble Mr.Justice Ajay Rastogi):
By the present writ petition, the petitioner who was a member of Rajasthan Judicial Service has impugned the order of the State of Rajasthan dt.31.03.2010 passed u/R.53(1) of the Rajasthan Civil Service Pension Rules, 1996 (in short 'the Rules of 1996') and was compulsorily retired on recommendations of -2- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
the High Court.
The brief facts of the case, which are relevant for the present purpose, are that the petitioner joined service as Munsiff & Judicial Magistrate, First Class on 08.02.1996 and was placed in the senior scale of RJS on 06.06.2001 and was promoted as Additional Chief Judicial Magistrate on 28.05.2002 and as Chief Judicial Magistrate on 18.03.2008.
While the Officer was working as Chief Judicial Magistrate, Hon'ble the Chief Justice vide order dt.30.11.2009 constituted a Committee of five Hon'ble Judges of this Court to scrutinize the cases of such of the Judicial Officers of the State of Rajasthan who have become deadwood or lost utility to continue in service for compulsory retirement obviously who qualified pre-conditions envisage u/R.53(1) of the Rules, 1996. After constitution, one of the Hon'ble Judge stood retired, Hon'ble the Chief Justice reconstituted the Committee of four Hon'ble Judges and the Committee in its meeting held on 02.03.2010 considered the cases of Judicial Officers including the petitioner and after examining the overall record of service including personal and other files of Officers, arrived at the conclusion that the petitioner became liability to the Judicial Service and public interest warrants compulsory retirement of the Officer and accordingly recommended for his compulsory retirement which was placed before the Full Court and after due deliberation and discussions and perusing the overall service record & ACRs, it was unanimously resolved by the Full Court in its meeting dt.20.03.2010 to accept the report of the Committee & -3- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
recommended petitioner's compulsory retirement and in consequence thereof vide order dt.31.03.2010, the petitioner was compulsorily retired u/R.53(1) of the Rules, 1996.
Apart from assailing the order of compulsory retirement on merits, the petitioner has also questioned the validity of R.53(1) of the Rules, 1996.
The main thrust of submission of counsel for petitioner is that R.53(1) of the Rules, 1996 envisages and casts an obligation upon the authority while taking decision to retire an officer who has completed 15 years of qualifying service or has attained the age of 50 years in public interest on account of his indolence or doubtful integrity or incompetence to discharge official duties or inefficiency in due performance of official duties or has lost his utility, the main considerations for the authority and obviously such conditions/factors, as envisage u/R.53(1) of the Rules, 1996, in the case of the present petitioner must have been taken into consideration, while taking decision of compulsory retirement and this certainly cast a stigma and that would not have been permissible without holding a disciplinary enquiry and affording an opportunity of hearing to the petitioner-Officer was a sine quo non and such action of the respondents is invalid and procedure followed is violative of Art.311(2) of the Constitution and the provision which in itself constitutes a stigma is arbitrary & unconstitutional, if tested on the anvil of Constitution & deserves to be quashed.
Counsel for petitioner further submits that granting permission for cessation of his service on the basis of the terms -4- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
which are synonyms of misconduct and rendering the Officer jobless and depriving him of his status which he enjoyed as a Judicial Officer without hearing him and curtailing the opportunity to continue in service in accordance with Rules, which is the right of the Officer, till he attained the age of superannuation and depriving him of the opportunities in the matters relating to employment and reducing the period of service u/R.53(1) of the Rules, 1996 is indeed violative of Art.14, 16 & 19 of the Constitution of India.
Counsel further submitted that there is complete disparity in the qualifying service & age for compulsory retirement prescribed under the Service Rules of the State of Rajasthan & Service Rules of the other respective States, as in the State of Rajasthan u/R.53(1) of the Rules, 1996 the qualifying service of compulsory retirement is 15 years or age is 50 years and almost in all other State Service Rules, the age is either 50 or 55 years but the qualifying service for compulsory retirement vary from State to State and by & large it is 20 years or more. Thus, compulsory retirement on completion of 15 years of service & in such of the cases where the officer has not attained the age for compulsory retirement, invoking R.53(1) of the Rules, 1996, is discriminatory and violative of Art.14 of the Constitution of India.
Counsel further submits that there was no material available on record on the basis of which even a man of ordinary prudence would arrive to a conclusion that the petitioner has become a deadwood or liability to the Judicial Service or lost his utility to continue in service and in public interest should be -5- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
compulsorily retired.
According to the counsel, the respondents have arbitrarily exercised their power u/R.53(1) of the Rules, 1996 to retire him compulsorily, as alleged, in public interest and since the order communicated to him impugned herein dt.31.03.2010 is completely innocuous and when the matter has come for judicial review, it is the bounden duty of the respondents to place the material on record to justify their action and from the record of service which has been referred to by the respondents in their reply and considered by the Committee constituted by Hon'ble the Chief Justice, if examined in totality, the recommendation of the Committee, approved by the Full Court, in taking a decision of his compulsory retirement in public interest is not legally sustainable on the parameters laid down by the Apex Court in series of judgements and it requires interference of this court.
Counsel for petitioner has further tried to persuade this court that the material which has been placed on record does not sustain the adverse remarks and overall record of the officer was to be looked into while taking a decision and arriving to the conclusion that the Officer has either become deadwood or looses its utility to continue in service and it appears that the Committee constituted by Hon'ble the Chief Justice has failed to examine the complete record of service of the petitioner and the subjective satisfaction which has been arrived at based on the service record and decision of compulsory retirement of the officer under order impugned is not sustainable and deserves to be quashed.
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D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
The respondents have filed their reply and while supporting the order impugned submitted that the total record of service including personal & other files of the petitioner were examined by the Committee constituted by Hon'ble the Chief Justice and on the recommendation of the Committee dt.02.03.2010 holding that the Officer has proved himself to be a liability to the Judicial service and in the public interest he may be compulsorily retired was placed before the Full Court and the Full Court in its meeting dt.20.03.2010, after scrutinizing the entire service record and other files of the officer, was unanimous & of the view that recommendation of the Committee constituted by Hon'ble the Chief Justice deserves acceptance and it will be in public interest to compulsory retire the petitioner and consequently vide Government order dt.31.03.2010, the petitioner was compulsorily retired u/R.53(1) of the Rules, 1996.
As regard validity of R.53(1) of the Rules, 1996 is concerned, counsel for respondent submits that these are broad factors which are to be kept in mind for taking overall decision for compulsorily retiring a Judicial Officer in public interest and it has no semblance of misconduct, as being indicated under the Rajasthan Civil Services (Conduct) Rules, 1971 and if at all there is any imputation of misconduct committed by the Officer, indisputably, disciplinary enquiry has to be conducted, as provided under the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 and decision of the authority, in a disciplinary enquiry conducted against the Officer, if found guilty, entail penalty as being prescribed u/R.14 of the Rules, 1958 after -7- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
adopting the procedure prescribed under the law for the alleged delinquency and that is the requirement of Art.311(2) of the Constitution, at the same time, u/R.53(1) of the Rules, 1996 overall record of service of the officer has to be examined by the competent authority in taking a decision regarding his utility and retention in service & based thereon the decision if taken for compulsory retirement in public interest, it cannot be held to be a penalty and the submission made by counsel for petitioner assailing the validity of R.53(1) of the Rules, 1996 is wholly without substance and deserves outright rejection.
We have considered the submissions made by counsel for the parties and with their assistance examined the material on record.
At the very outset, we would like to quote R.53(1) of the Rules, 1996 under which the petitioner has been compulsorily retired and extract of the Rule, which is relevant for the present purpose, read ad infra:-
"At any time, after a government servant has completed 15 years qualifying service or has attained the age of 50 years, whichever is earlier, the appointing authority, upon having been satisfied that the concerned government servant has on account of his indolence or doubtful integrity or incompetence to discharge official duties or inefficiency in due performance of official duties, has lost his utility, may require the concerned government servant to retire in public interest after following the procedure laid down by the Government in Department of Personnel/Administrative Reforms Development. In case of such retirement, the government servant shall be entitled to retiring pension."
If we see R.53(1) of the Rules, 1996, it gives right to the competent authority to retire any government servant who has completed 15 years qualifying service or has attained the age of 50 years, whichever is earlier, after recording subjective satisfaction of the authority forming opinion that it is in public -8- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
interest to retire the government servant prematurely from service.
As regards submission of the petitioner that compulsory retirement on qualifying 15 years of service in such of the cases where the officer has not attained the age of 50 years for compulsory retirement, invoking R.53(1) of the Rules, 1996, is discriminatory and violative of Art.14 of the Constitution, in our considered view, is without substance for the reason that on the first principle there is always a presumption in favour of the constitutionality or validity of a legislation and the burden is upon the person who attacks it to show that it is invalid and at the same time it is also settled that a subordinate legislation can be challenged if there is a lack of legislative competence or violation of fundamental rights guaranteed under the Constitution or violation of any provision of the Constitution or in enactment there is a manifest arbitrariness & unreasonableness while examining the constitutional validity of R.53(1) of the Rules, 1996 & that is not the case, the petitioner has been able to built up.
It is always for the Rule making authority to take a decision in its wisdom laying down the conditions of minimum qualifying service or the age for compulsory retirement and if the Rule making authority has considered 15 years of qualifying service or 50 years of age, whichever is earlier, as in the instant case, there could not be any comparison of the qualifying service or age for compulsory retirement with the pari-materia provision with some deviation of other States and at least in the State of Rajasthan R.53(1) of the Rules, 1996 which is the substitution of R.244(2) of Rajasthan Service Rules, 1951 is being uniformly followed in -9- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
the cases of compulsory retirement on the qualifying service of 15 years or age of 50 years and a time tested provision & what is being contended in questioning the wisdom of the Rule making authority, is wholly without substance and deserves rejection.
As regards submission made while questioning the validity of R.53(1) of the Rules, 1996 because of the factors to be taken into consideration of indolence, doubtful integrity, incompetence or inefficiency in due performance of official duties, has lost his utility and taking the decision of compulsory retirement from service, cast stigma and being a penalty could be inflicted upon the delinquent officer, after holding a disciplinary enquiry and procedure prescribed under the Rules, 1958 and that has to commensurate with the requirement of Art.311(2) of the Constitution is without substance for the reason that the decision of compulsory retirement from service while exercising R.53(1) of the Rules, 1996 is neither dismissal nor removal from service and is not by way of punishment involve no penal consequence, as understood in service jurisprudence inasmuch as the person retired is entitled for pension and other retiral benefits proportionate to the period of service standing to his credit and order of compulsory retirement being not an order of adverse consequence, principles of natural justice have no application and in our considered view R.53(1) of the Rules, 1996 is a time tested provision is neither arbitrary nor unreasonable nor is against any provisions of the Constitution and Art.311(2) of the Constitution has no application.
Thus, in our considered view, the phraseology used in -10- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
R.53(1) of the Rules, 1996 does not render the said Rule invalid or unconstitutional. It is also true that the decision taken by the authority in arriving to the conclusion that continuance in service will not be in public interest if come for judicial review, it has to be supported by the material germane in taking decision holding that the officer looses its utility to continue in service and is in public interest to be retired compulsorily, although, it was not required to go into adequacy or sufficiency of such material.
Apart from what has been considered by us in examining the validity of R.53(1) of the Rules, 1996 referred to supra, it has also been considered by us in our earlier judgment in Prashant Yadav Vs. The State of Rajasthan & Anr. [D.B.Civil Writ Petition No.9003/2010] decided on 07.08.2014. We consider it appropriate to quote the relevant extract of the judgment dt.07.08.2014, which reads ad infra:-
"As regard the submission made with respect to the validity of R.53(1) of the Rules 1996 is concerned, the officer present in person has made casual & feeble attempt before us but we do not find appropriate pleadings & consequential prayer in the original petition or in the amended petition, but at the same time, oral submission made by the petitioner is that qualifying service of 15 years is too short a period of an officer for taking decision of his compulsory retirement and as he did not attain the age of 50 years, the action of the respondent could not be held to be valid in the eye of law for taking a decision of compulsory retirement invoking R.53(1) of the Rules 1996 is without substance for the reason that there is always a presumption in favour of the constitutionality or validity of a legislation and the burden is upon the person who attacks it to show that it is invalid and at the same time it is also settled that a subordinate legislation can be challenged if there is a lack of legislative competence or violation of fundamental rights guaranteed under the Constitution or violation of any provision of the Constitution or in enactment there is a manifest arbitrariness/unreasonableness but that is not the case pleaded and submitted before the Court to call upon to examine the validity of R.53(1) of Rules 1996. In our considered view, if the rule making authority in its wisdom has considered 15 years of qualifying service to be sufficient for compulsory retirement that cannot be considered to be arbitrary or mere asking and half hearted submission even otherwise is not convincing to us and sustainable in law and deserves outright rejection."
Before adverting to the question whether the order of compulsory retirement dt.31.03.2010 suffers from any legal -11- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
infirmity, we would consider it appropriate to refer to the report of the Committee constituted of Hon'ble Judges who examined the overall service record of the petitioner in its meeting held on 02.03.2010. The Committee in its report dt.02.03.2010 observed ad infra:-
"(2) Shri Jagdish Prasad Sharma-V He was born on 14.09.1959 and is presently posted as Civil Judge (Sr.Division) cum Chief Judicial Magistrate, Doongarpur.
The Officer entered in the service in the year 1996 in the cadre of Rajasthan Judicial Services.
The Officer's ACRs' though reflect remark good for most of the years but so far as complaints against the Officer are concerned, which we have perused, are of serious nature which includes demand of bribe for making payment of compensation in land acquisition matter, corruption and has connection with land Mafia and he frequently goes to Shahpura to put his influence in murder case and there is serious allegation of illicit relation with the wife of the deceased and there is allegation that he decides the case only wherein he gets bribe and specific name has been given of the lady in the complaint.
In view of overall assessment of the service record including personal and other files of Shri Jagdish Prasad Sharma-V, he has proved himself to be a liability upon the judicial service and, therefore, in the public interest such judicial officer may be compulsorily retired immediately. It is further recommended that enquiry, if any, pending against him under Rules 16 and 17 of the CCA Rules, may be dropped. It is further recommended that the Officer may be given a Bank Draft of the amount equivalent to three months' pay and allowance in lieu of notice period along with order of retirement."
While the Officer was posted as Chief Judicial Magistrate, Alwar, an adverse entry was recorded in his ACR for the year 2008 by the Inspecting Judge which reads ad infra:-
"Average. His general reputation is not good."
But this remark could not been conveyed to him as he stood retired by that time.
That apart the respondents have also stated in their reply -12- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
the kind of complaints received against the petitioner, of which a detailed reference has been made. We consider it appropriate to quote the relevant extract of the reply, which reads ad infra:-
"2. File No.:R/V/190/2002 (R/G/V/C/114/2002) It is submitted that while the petitioner was posted as Civil Judge (Junior Division) & Judicial Magistrate, Ringus, District Sikar (Raj.) a complaint dated 19.06.2002 alleging that the petitioner was not passing order on the application of police for removal of encroachment and was not disposing the T.I.applications in the suit (As per direction, the same was filed on 29.08.2003).
3. File No.:R/V/C/1282/2003 (R/G/V/C/550/2003) It is submitted that while the petitioner was posted as Civil Judge (SD), Kishangarhbas, Distt-Alwar, a complaint dated 06.10.2003 was received alleging that the petitioner Shri Sharma was not deciding a case even after hearing the arguments and was harassing the lady complainant by giving frequently next dates and by adjourning the matter. (As per direction, the same was filed on 26.11.2003).
4. File No.:R/V/C/166/2008 (R/V/JD/C/321/2008) It is submitted that while the petitioner was posted as Civil Judge (SD) and Chief Judicial Magistrate, Alwar, a complaint dated 22.09.2008 was received against him alongwith photo copies of order sheets, reference application, applications for releasing payment, T.I. rejection order. According to this complaint, on 14.08.2008 and 12.09.2008, the petitioner called the complainant in his chamber and demanded Rs.25000/- as bribe to release compensation amount in a case related to land acquisition. Thereafter, as per direction, the District & Sessions Judge, Alwar submitted his enquiry report dated 02.06.2009 alongwith statement of witnesses.
5. File No.:R/V/C/199/2008 (R/V/JD/C/353/2008) It is submitted that while the petitioner was posted as Chief Judicial Magistrate, Alwar, a complaint with serious allegations was received on 14.11.2008. In this complaint it was alleged by the complainant that the petitioner Shri Jagdish Prasad Sharma was dishonest and corrupt officer. He had made connection with smugglers and land mafia during his posting. One case No.15/2007 State Vs. Siyaram & Ors. related to murder of a land mafia Kapil Mudgal was pending in the court of Additional Sessions Judge, Shahpura. The petitioner was taking keen interest in the case to procure conviction and using his influence in favour of said land mafia Mr.Kapil Mudgal's family. Shri Sharma had illicit relation with the wife of deceased Mr.Kapil Mudgal. He used to go Shahpura (Jaipur) on leave, in this connection, which can be verified from his leave record. The petitioner did not sit in the court and generally decided those cases in which he could get bribe. For taking bribe, Shri Sharma used to sit in the chamber and talk on his mobile phone and his chamber phone with the parties. It was further alleged that the same may be verified from the call details and messages sent on the phones.
After receiving the above complaint, comments were called from the petitioner for the same and the petitioner submitted his comments dated 10.02.2009. The call detail for the period of last six months of the year 2008 (01.07.2008 to 31.12.2008) of the mobile number 9828531028 given in the above complaint was also called and the same was received. From the perusal of record received from the mobile company, it was found that frequently calls were made from the above number 9828531028 in day & -13- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
night in short intervals for long durations on a particular number. The call details of land line telephone was not provided by the BSNL.
6. File No.:R/V/C/243/2009 (R/V/JD/C/397/2009) It is submitted that a complaint dated 21.10.2008 with serious allegations alongwith covering letter dated 24.07.2009 was received against the petitioner regarding corruption and some allegations were also made regarding misuse of his power and influencing etc. in a case of murder pending at Shahpura."
It is indeed settled by this time that the order of compulsory retirement is not a punishment, it implies no stigma nor any suggestion of misbehavior and is based on subjective satisfaction of the authority and this principle has been consistently followed by the Apex Court that while considering the case of an Officer as to whether he should be continued in service or compulsorily retired, his entire record of service upto that date on which consideration is made has to be taken into account while taking decision of compulsory retirement, of course, attaching more importance of service record of last 5-10 years but the evaluation has to be made on the basis of entire service record and even if one has been promoted that will not wipe out the earlier adverse entry, if any, and even one solitary adverse entry in the record of service regarding honesty & integrity would be considered to be sufficient in taking a decision of compulsory retirement.
More so, in Judicial service which cannot be considered to be a service in the sense of employment and the Judicial Officers discharge their functions while exercising the sovereign judicial power of the State. There is no manner of doubt that the nature of Judicial service is such which cannot afford to suffer continuance in service of persons of doubtful integrity or those -14- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
who have lost their utility & integrity. The honesty and integrity of an Officer is always expected to be beyond doubt, should also be reflected in his overall reputation. In the case of Baikuntha Nath Das & Anr. Vs. Chief District Medical Officer, Baripada & Anr. reported in AIR 1992 SC 1020 the Apex Court has laid down certain guidelines & the scope of judicial review to be kept in mind by the courts while examining the order of compulsory retirement and that include malafides, even if the order is based on no evidence or if the order is arbitrary in the sense that no reasonable person with ordinary prudence would form the requisite opinion on the given material, if it is found to be a perverse order. The Apex Court, thus, held ad infra:-
"(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 the 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 loose 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".
Similar is the view which was further reiterated by the Apex -15- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
Court in the case of Posts & Telegraphs Board and Ors. Vs. C.S.N.Murthy reported in AIR 1992 SC 1368 wherein the Apex Court has observed ad infra:-
"There was a very limited scope of judicial review in a case of compulsory retirement and it was permissible only on the grounds of non-application of mind; mala fides; or want of material particulars. Power to retire compulsorily a Government servant in terms of Service Rules is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest".
Taking note of later decision of the Apex Court, three Judges Bench of Apex Court in Pyare Mohan Lal Vs. State of Jharkhand and Ors. reported in AIR 2010 SC 3753 observed ad infra:-
"Thus, the law on the point can be summarized to the effect that an order of compulsory retirement is not a punishment and it does not imply stigma unless such order is passed to impose a punishment for a proved misconduct, as prescribed in the Statutory Rules".
The above settled principles as regards judicial service came to be examined by the Apex Court in Nawal Singh Vs. State of U.P. and Anr. reported in (2003) 8 SCC 117, wherein the Apex Court observed ad infra-
"The judicial service is not a service in the sense of an employment. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, the Supreme Court would not interfere with the same, particularly because the order of compulsory retirement is based on the subjective satisfaction of the authority. The present appeals are required to be decided on the basis of the said principles".
This fact cannot be ruled out that judicial service is not a service in the sense of employment and as is commonly understood Judges are discharging their functions exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their -16- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
overall reputation. There is no manner of doubt that the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility.
Compulsory retirement is neither dismissal nor removal and differs from both of them and 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.
It is also settled by the consistent view of the Apex Court that the order of compulsory retirement does not have adverse consequence and, therefore, the principles of natural justice has no role to play and even uncommunicated ACR(s) on record can be taken into consideration and an order of compulsory retirement cannot be set aside for the reason that such uncommunicated entries were taken into consideration or the officer has not been afforded an opportunity to represent before such uncommunicated entries were taken into consideration for passing the order of compulsory retirement, cannot vitiate the order of compulsory retirement.
At the same time, the authority has to take into consideration the entire service record of the officer concerned but more attention is to be paid to the last 5-10 years of service record which would include uncommunicated adverse remarks also.
Similar view has been taken by the Apex Court in Rajendra -17- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
Singh Verma (Dead) through LRs. & Others Vs. Lieutenant Governor (NCT of Delhi) & Others reported in (2011) 10 SCC 1 which reads ad-infra:
"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 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."
It has been further considered by the Apex Court in R.C.Chandel Vs. High Court of M.P. & Anr. reported in (2012) 8 SCC 58 wherein the Apex Court at para-29 has observed ad infra:-
"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 higher moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar's wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and the 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."
After taking note of the principles laid down by the Apex Court, what emerges is that the formation of opinion for compulsory retirement is based on subjective satisfaction of the authority concerned but at the same time when the matter -18- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
comes for judicial review, courts can certainly look into as to whether valid material exists or not, or whether the order of compulsory retirement is based on some material or not but sufficiency of material cannot be a ground for setting aside the order of compulsory retirement.
In the instant case, respondents have placed on record the complete service record of the officer which was examined by the Committee constituted by Hon'ble the Chief Justice in its meeting dt.02.03.2010 and after evaluation, arrived to the conclusion that the Officer has proved himself to be a liability upon the judicial service and recommended to compulsory retire him in public interest and such recommendation of the Committee was placed before the Full Court and the Full Court took a unanimous decision after due deliberation and there hardly remains any chance of allegation of non-application of mind and there appears no malafide committed in the process which was adopted by the respondents in taking decision in regard to compulsorily retire the Officer and that apart in the report, the Committee took a serious note of the kind of complaint, of which a detailed reference has been made and on overall assessment of the service record including personal & other files of the Officer, finally recommended that the Officer has become a liability upon the judicial service and in the public interest he may be compulsorily retired.
After examining overall material which has come on record, we do not find any error being committed by the respondents in taking the impugned decision of compulsory retirement of the -19- D.B.CIVIL WRIT PETITION (CW) No. 782 of 2011 Jagdish Prasad Sharma. Vs. State of Raj. & Ors.
petitioner which is based on record of service and further no stigma is attached to the order impugned.
In view of the above discussion, we do not find any reason to interfere in the matter and the writ petition lacks merit, accordingly stands dismissed. No costs.
(JAINENDRA KUMAR RANKA ),J. (AJAY RASTOGI),J. Solanki DS, P.S.