Bombay High Court
Shri Pradip Vasant Bavkar vs The State Of Maharashtra on 16 November, 2011
Author: K.K. Tated
Bench: J.P. Devadhar, K.K.Tated
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5856 OF 2010
Shri Pradip Vasant Bavkar,
Age 55 years, Occ. Nil,
Residing at 201, Koyna Building,
Sector No.15, Plot No.16,
Sanpada, District Thane,
Navi Mumbai - 400 705. ..Petitioner.
Versus
1 The State of Maharashtra,
Through The Principal Secretary
and Legal Remembrance Law &
Judiciary Department,
Mantralaya, Mumbai - 400 032.
2 The Registrar General,
High Court, Bombay,
Appellate Side, Mumbai - 400 032. ..Respondents.
Mr. Pradip Vasant Bavkar - Petitioner - party in person.
Mr. C.R. Sonavane, AGP for Respondent no.1/State.
Mr. S.K. Shinde for Respondent no.2.
CORAM : J.P. DEVADHAR & K.K.TATED, JJ.
RESERVED ON : 19/10/2011
PRONOUNCED ON : 16/11/2011.
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JUDGMENT:(PER K.K. TATED, J.) 1 Heard the Petitioner - party in person and the learned counsel for Respondent no.1 and the learned counsel for Respondent no.2.
2 Rule.
3 By consent, Rule made returnable forthwith.
4 By this Petition under Articles 226 of the Constitution of India, the Petitioner challenges the order dated 26th February, 2010 passed by the Principal Secretary and Legal Advisor, Law and Justice Department, Mantralaya, Mumbai - 400 032 for compulsory retirement of the Petitioner from judicial service of the State of Maharashtra.
5 Relevant facts of the matter are as under:
In the year 1976, the Petitioner completed his Bachelor of Arts degree and thereafter in the year 1981 LL.B degree. After completing ::: Downloaded on - 09/06/2013 17:55:34 ::: 3 wp 5856.10.doc the Law degree, the Petitioner enrolled as an Advocate with the Bar Counsel of Maharashtra and Goa. After completion of 15 years practice as an advocate he joined judicial service on 19th November, 1997 as Judge, City Civil and Sessions Court, Greater Bombay (District Judge cadre). Thereafter, he was appointed as Special Judge for TADA Designated Court, Greater Bombay on 26th September, 2005. From 20th November, 2007 to 4th March, 2009 the Petitioner on transfer was posted as Solicitor-cum-Joint Secretary to the Government of Maharashtra, Mantralaya, Mumbai. On 5th March, 2009 the Petitioner came to be transferred and posted as Principal District and Sessions Judge, Amaravati. Thereafter, the Petitioner was transferred as Principal District and Sessions Judge, Sangli. During his tenure as a City Civil Court Judge, the Guardian Judge has written his Confidential Reports (hereinafter referred to as "CR"). The CR's for the year ending March, 2005 and March, 2006 (Exhibit R and S) wherein certain adverse remarks were made against the Petitioner.
6 On the basis of the said adverse remarks and considering his service record, Review Committee of the High Court of Judicature at Bombay took decision on 27th January, 2010 as per Rule 19 of the ::: Downloaded on - 09/06/2013 17:55:34 ::: 4 wp 5856.10.doc Maharashtra Judicial Services Rules, 2008 read with Rule 10 (4) of the Maharashtra Civil Services (Pension) Rules, 1982 to recommend to the Government for compulsory retirement of the Petitioner on his attaining the age of 55 years. Both the Adverse CR's for the year 2004-2005 and 2005-2006 are reproduced herewith:
"Exhibit - "R"
Confidential Report on the work of Shri P.V. Bavkar, Judge, City Civil Court, for the reporting period year ending March, 2005.
1 Description of posts held and : Judge, City Civil Court,
particulars of posting during Bombay.
the period under report.
2 Special powers, if any
conferred. : ---
3 Knowledge of law and
procedure. : Poor.
4 What is the quality of his : Poor.
judgments as regards
reasoning, clarity and
precision.
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5 Is he industrious and prompt
in Disposal of cases? : )
a) Disposal of old cases : )
b) Disposal of other cases : )
c) Disposal of cases through ) Yes.
Lok Adalat. : )
d) Work done for promoting )
Alternative Dispute )
Resolution. : )
6 Remarks about supervision of
the distribution of business
and his control over the
subordinate courts. : Fair.
7 Remarks about his admini-
strative work. : Fair.
8 Remarks about his attitude
towards his superiors,
subordinates and
colleagues. : Fair.
9 Remarks regarding his
behavior towards members ) Dubious behavior
of the Bar & the public. : ) Integrity is seriously
) in doubt.
10 Remarks about reputation ) Does not deserve
and integrity, impartiality ) to be retained in
and character. : ) service.
11 Whether he is under probation/
under extended period of
probation. : N.A.
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12 Whether he under went
training of JOTI during
period of review and if so,
remarks of Director. : N.A.
13 If he fit for taking additional
responsibility. :
14 Whether he was placed under
suspension/facing any
Departmental enquiry
during period review?
ig : No.
15 Whether the Officer was
warned/visited with
penalty during period
under review? : No.
16 General Remarks, if any : Corrupt judicial officer.
17 Net result : A+ Outstanding, A Very Good,
B+ Positive Good, B Good.
C - Average, C Below Average.
C Below average.
Place: Mumbai. Reporting Authority,
Date: 8/12/08. sd/-
Hon'ble Dr. Justice D.Y. Chandrachud
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Exhibit - "S"
Confidential Report on the work of Shri P.V. Bavkar, Judge, City Civil Court, for the reporting period year ending March, 2006.
1 Description of posts held and : Judge, City Civil Court,
particulars of posting during Bombay.
the period under report.
2 Special powers, if any
conferred. : ---
3 Knowledge of law and
procedure. : Poor.
4 What is the quality of his : Poor.
judgments as regards
reasoning, clarity and
precision.
5 Is he industrious and prompt
in Disposal of cases? : )
a) Disposal of old cases : )
b) Disposal of other cases : )
c) Disposal of cases through ) Yes.
Lok Adalat. : )
d) Work done for promoting )
Alternative Dispute )
Resolution. : )
6 Remarks about supervision of
the distribution of business
and his control over the
subordinate courts. : Fair.
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7 Remarks about his admini-
strative work. : Fair.
8 Remarks about his attitude
towards his superiors,
subordinates and
colleagues. : Fair.
9 Remarks regarding his
behaviour towards members ) Lacking in integrity.
of the Bar & the public. : ) Dubious behavior.
) His continuance in
10 Remarks about reputation
ig ) this judiciary is
and integrity, impartiality ) undesirable.
and character. :)
11 Whether he is under probation/
under extended period of
probation. : N.A.
12 Whether he under went
training of JOTI during
period of review and if so,
remarks of Director. : N.A.
13 If he fit for taking additional
responsibility. :
14 Whether he was placed under
suspension/facing any
Departmental enquiry
during period review? : No.
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15 Whether the Officer was
warned/visited with
penalty during period
under review? : No.
16 General Remarks, if any : Serious allegation of
corruption.
17 Net result : A+ Outstanding, A Very Good,
B+ Positive Good, B Good.
C - Average, C Below Average.
C Below average.
Place: Mumbai.
ig Reporting Authority,
Date: 8/12/08. sd/-
Hon'ble Dr. Justice D.Y. Chandrachud
7 Pursuant to the recommendation of the Review Committee of
the High Court of Judicature at Bombay, the Maharashtra State through the Law and Justice Department passed an order dated 26th February, 2010 bearing No.CJM-2010/184/(23)K-3 of compulsory retirement of Petitioner from the judicial service (Ex.A). Immediately, thereafter, the Petitioner made representation to the Hon'ble Chief Justice, High Court of Judicature at Bombay for review or reconsideration of the decision taken by the Review Committee of the Hon'ble High Court of Judicature at Bombay, on the basis of which ::: Downloaded on - 09/06/2013 17:55:34 ::: 10 wp 5856.10.doc the Petitioner was to be compulsorily retired. Thereafter, the Petitioner addressed a letter dated 12th March, 2010 to the Registrar General, High Court, Appellate Side, Bombay to stay the execution and service of the order for his compulsory retirement on completion of 55 years of age. In the said letter, in second para, the Petitioner stated that on 10th March, 2010 at about 3 p.m. he met the Hon'ble Chief Justice. He further stated that the Hon'ble Chief Justice was kind enough and assured him that he would be given personal hearing and before giving the hearing, order for compulsory retirement would not be served upon him; but without giving him hearing, his representation dated 8th March, 2010 was rejected by the High Court on 6th April, 2010 and the order passed by the State Government through Law and Judicial Department dated 26th February, 2010 was served on the Petitioner on 23rd April, 2010. Being aggrieved by the said order, the Petitioner filed the present Writ Petition under Article 226 of the Constitution of India.
8 The Petitioner who appeared party in person submits that the Reporting Judge has written (Adverse) Annual Confidential Report (hereinafter referred to as "ACR") for the period ending 31st March, ::: Downloaded on - 09/06/2013 17:55:34 ::: 11 wp 5856.10.doc 2005 and 31st March, 2006 on 8th December, 2008, wherein, it is stated that the Petitioner is corrupt Judicial Officer, his judgment and legal knowledge is poor and it is expressed that the Petitioner should not be continued in service. He submits that the said ACR is written either with prejudiced mind or on the basis of wrong information provided against the Petitioner with a view to damage the Petitioner's judicial career and or His Lordship has committed gross error while writing the said two ACRs on account of mistaken identity. He submits that the said two ACRs are written by the Reporting Judge on 8th December, 2008 i.e. after above 3 to 4 years from the relevant period which again creates a serious doubt about their truthfulness and correctness. He submits that the said two ACRs are contradictory to the ACR for the period ending 31st March, 2007 written by the same Reporting Judge, wherein, His Lordship has observed that the Petitioner has good knowledge of law and procedure and there is nothing adverse to suspect integrity and character of the Petitioner and that the net result is "B Good". The said CR is at Exhibit "T" to the Petition.
9 He further submits that throughout his career as Judicial Officer, he has given his best to the job. He has worked with utmost sincerity, ::: Downloaded on - 09/06/2013 17:55:35 ::: 12 wp 5856.10.doc loyalty and integrity. He submits that his loyalty and integrity was never doubted. He submits that by taking into consideration his good service record, the Petitioner was appointed as Special Judge TADA, Designated Court, Mumbai, he was posted as Solicitor cum Joint Secretary to the Government of Maharashtra, Law and Justice Department, Mantralaya, Mumbai, he was transferred and posted as Principal District and Sessions Judge, Amaravati as well as Sangli.
Considering these facts, the decision taken by the Review Committee, High Court of Judicature at Bombay dated 27th January, 2010 and the order passed by the Government of Maharashtra through the Law and Judiciary Department dated 26th February, 2010 Ex. A is against justice, equity and good conscience and same is liable to be set aside.
10 He further submits that he received two letters from the Registrar General, High Court, Bombay dated 19th January, 2010 which were issued to communicate the Petitioner the result of review of Annual Confidential Report for the period 2004-2005 (ending 31st March, 2005) and 2005-2006 (ending 31st March, 2006), wherein it is communicated to the Petitioner that:
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a) Knowledge of law and procedure; Poor.
b) Quality of his judgments as regards
reasoning, clarity and precision: Poor
c) Net result: Below Average.
11 He submits that the said letter also suggested that he should take
note of the said observation and show improvement. The said communication goes to show that the Reviewing Authority accepted the comments of the Reporting Judge with regard to column nos. 3, 4 and 7 of the ACR in question and that the Reviewing Authority have not accepted the adverse remark of the Reporting Authority with regard to the integrity, behavior and reputation of the Petitioner.
Therefore, in those letters, there is no reference of the remarks passed in column nos. 9, 10 and 16 when the Review Authority is not agreeable to those adverse remarks which support the contention of the Petitioner that the said adverse remarks are baseless, incorrect and unjust.
12 He further submits that he made a representation to the Chief Justice, Bombay High Court and requested for personal hearing.
::: Downloaded on - 09/06/2013 17:55:35 :::14 wp 5856.10.doc Though the same was assured by the Chief Justice, without giving any personal hearing the impugned order came to be issued on 26th February, 2010 and served on him on 23rd April, 2010. Therefore, without hearing the Petitioner in person, the said impugned order issued by the Law and Judiciary Department is against justice, equity and good conscience and same is liable to be set aside.
13 The Petitioner further submits that due to mistaken identity the Reporting judge must have recorded those adverse remarks in the two ACRs because in the subsequent year the same Judge had written about his integrity as good. Therefore, on this count the impugned order dated 26th February, 2010 is also liable to be set aside.
14 During the course of hearing, the Petitioner in writing submitted grounds for challenging the ACRs for the period 2004-2005 and 2005-2006 which are as follows:
"1 That the said ACR's were written after a lapse of about 3-4 years for the period ending in one stroke on 8/12/2008 and that the Reporting Authority had not perused the service record."::: Downloaded on - 09/06/2013 17:55:35 :::
15 wp 5856.10.doc "2 That the Reporting Authority, without taking any efforts to ascertain the correct and true things seems to have relied upon absolutely wrong, incorrect and false information which seems to have been provided to spoil my judicial career. The Reporting Authority on the basis of such information seems to have formed absolutely incorrect and wrong opinion and thereby has committed gross error in taking adverse entries."
"3 That the available record, earlier ACR's and facts and circumstances shows that the disputed ACR's are required to be kept aside it being absolutely wrong and incorrect."
"4 That the language used and the adverse entries recorded in the said ACR's are sufficient to infer that it is an outcome of grudge towards me and therefore the same are not free from doubt especially when the other record is good."
"5 That the adverse entries are not approved and confirmed by reviewing authority and therefore, the adverse entries lost its significance."
"6 That the guidelines fixed for writing ACR's were totally ignored and kept aside by the Reporting Authority which suggest and point out that the Authority has acted in gross negligent and careless manner and have recorded incorrect and absolutely baseless and wrong entries."
::: Downloaded on - 09/06/2013 17:55:35 :::16 wp 5856.10.doc "7 Perhaps it may be a case of mistaken identity as there is no reference in the said disputed ACR's that I was the then Joint Secretary and Solicitor to the Government of Maharashtra L & J D Mantralaya, though the said ACR's were written on 8/12/2008 and on the relevant date I was not a City Civil Judge."
"8 That the ACR for the period ending March 2007 written by the same Reporting Authority is totally contrary to the disputed ACR's and the net result is recorded as good in all respect which again goes to show that the adverse entries recorded in disputed ACR's are either based on false and wrong information provided or that the Authority has committed error and took adverse entries without there being any substance."
"9 The record available in the office of Respondent no.2 goes to show that the adverse entries recorded in disputed ACR's are absolutely wrong and incorrect."
15 In support of his contention, the Petitioner relied on following authorities:
1) Baikuntha Nath Das vs. Chief District Medical Officer, Baripada reported in 1992 SC 168.
2) M.S. Bindra vs. Union of India and Others, reported in (1998) SCC 310.
3) Yoginath Bagade vs. State of Maharashtra reported in 1999 (7) SCC 739.::: Downloaded on - 09/06/2013 17:55:35 :::
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4) Brij Mohan Singh Chopra vs. State of Punjab reported in 1987 (2) SCC 188.
16 The Petitioner, thus, urges that since there was no material on the basis on which the impugned ACRs could be recorded or order of compulsory retirement could be passed, the impugned order cannot be upheld.
17In the matter of Baikunta Nath Das vs. Chief Officer, Baripada reported in 1992 SC 168, the Supreme Court made the following observations:
"30. Another factor to be borne in mind is this: most often, the authority which made the adverse remarks and the authority competent to retire him compulsorily are not the same. There is no reason to presume that the authority competent to retire him will not act bonafide or will not consider the entire record dispassionately. As the decided cases show, very often, a Review Committee consisting of more than one responsible official is constituted to examine the cases and make their recommendation to the Government. The Review Committee, or the government, would not naturally be swayed by one or two remarks, favorable or adverse. They would form an opinion on a totality of ::: Downloaded on - 09/06/2013 17:55:35 ::: 18 wp 5856.10.doc consideration of the entire record - including representations, if any, made by the government servant against the above remarks - of course attaching more importance to later period of his service. Another circumstance to be borne in mind is the unlikelihood of succession of officers making unfounded remarks against a government servant."
"31. 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 representations 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 ::: Downloaded on - 09/06/2013 17:55:35 ::: 19 wp 5856.10.doc 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.
At this stage, we think it appropriate to append a note of clarification. What is normally required to be communicated is adverse remarks - not every remark, comment or observation made in the confidential rolls.
There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56 (j) or a Rule corresponding to it. The object and purposes for which this power is to be exercised are well-stated in J.N. Sinha (AIR 1971 SC 40) and other decisions referred supra."
"32. 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.::: Downloaded on - 09/06/2013 17:55:35 :::
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(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 favorable 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.
::: Downloaded on - 09/06/2013 17:55:35 :::21 wp 5856.10.doc Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 29 to 31 above."
18 In the matter of M.S. Bindra vs. Union of India and Others, reported in 1998 SCC 310, the Supreme Court held that the want of materials could not justify the conclusion. The Court observed that the Judicial Officer cannot be condemned of "doubtful integrity" on the mere hunch, the doubt should be of such a nature which reasonably and consciously entertainable by reasonable person on the given materials and consciously entertain able by reasonable person on the given material and only then there is justification to stamp an Officer with the label "doubtful integrity" and that no one becomes dishonest all of a sudden. This decision is distinguishable on facts.
In that case officer of Indian Revenue Service was compulsorily retired as his integrity was doubted on the basis of three specific cases decided by him and other material. He was unsuccessful before CAT.
Hence he appealed to the Supreme Court. The Apex Court considered those cases and found that the three cases which formed the basis for ::: Downloaded on - 09/06/2013 17:55:35 ::: 22 wp 5856.10.doc proceeding against the appellant do not reveal anything for which appellant's integrity should have been doubted and allowed the appeal.
The Apex Court in Rajendra Singh Verma ( dead ) through L.Rs.
( supra ) have considered the connotation of "material" appearing in that decision. At para 119 of the report their Lordships as regards the material on the basis of which the adverse remarks may be recorded state thus, " while considering the case of a judicial officer it is not necessary to limit the material only to written complaints or "tangible"
evidence pointing finger at the integrity of judicial officer. Such evidence may not be forthcoming in such cases." Their Lordships at para 123 of the report laid down, "When even verbal repeated complaints are received against a judicial officer or on enquiries, discreet or otherwise, the general impression created in the minds of those making enquiries or the Full Court is that concerned judicial officer does not carry good reputation, such discreet enquiry and/or verbal complaints would constitute material on the basis of which the ACR indicating that the integrity of the officer is doubtful can be recorded".
19 In the matter of Yoginath Bagade vs. State of Maharashtra ::: Downloaded on - 09/06/2013 17:55:35 ::: 23 wp 5856.10.doc reported in 1999 (7) SCC 739 in para 51, the Supreme Court observed as under:
"51 UNDER Article 235 of the Constitution, the High Court has a duty to protect the officers of the subordinate judiciary from unscrupulous litigants and lawyers, In Ishwar Chand Jain vs. High Court of Punjab & Haryana & Anr. AIR 1988 SC 1395, it was, inter alia, observed 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. It was further observed that an honest and strict judicial officer is likely to have adversaries in the mofussil courts; if trifling complaints relating to judicial orders which may have been upheld by the High Court on the judicial side are entertained, no judicial officer would feel protected; and it would be difficult for him to discharge his duties honestly and independently. It is, therefore, imperative for the High Court to protect its honest judicial officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants."
In that case the judicial officer was dismissed as the Disciplinary Committee disagreeing the Enquiry officer held that the charges leveled against the appellant judicial officer were proved.
Disciplinary Committee without giving opportunity of hearing held that the charges levied against him were proved. In Appeal the Apex Court found that the Disciplinary Committee was wholly in error in ::: Downloaded on - 09/06/2013 17:55:35 ::: 24 wp 5856.10.doc disagreeing with the findings recorded by the Enquiry officer and the charges levied against the appellant were not proved. Hence the appeal was allowed.
20 In the matter of Brij Mohan Singh vs. State of Punjab reported in 1987(2) SCC 188, the Apex Court held that while considering the question of premature retirement it may be desirable to make an overall assessment of the Government Servants record, but while doing that, more value should be attached to the CRs pertaining to the years immediately preceding such consideration. This authority is also distinguishable on facts. In the present case, the two CR's for the year 2004-2005 and 2005-2006, the present Petitioner's integrity was found doubtful and he was reported to be corrupt judge, and these remarks cannot be obliterated by the absence of such remarks in the CR for the year immediately proceeding the consideration.
In this connection their Lordships of the Apex Court in the case of Gajendra Singh Verma ( supra ) at para 115 of the report state thus, " What weight should be attached to earlier entries as compared to recent entries is a matter of evaluation, but ::: Downloaded on - 09/06/2013 17:55:35 ::: 25 wp 5856.10.doc there is no matter 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".
21 On the basis of these submissions and the authorities, the Petitioner submits that the impugned order passed by Respondent no.1 dated 26th February, 2010 is liable to be set aside and the Respondents be directed to forthwith reinstate the Petitioner to his original post (District and Sessions Judge) with all consequential benefits such as continuity in service, payment of full back wages on the date of premature retirement till reinstatement and other service benefits. We have already indicated that the authorities relied upon by the Petitioner are distinguishable on the facts and the subsequent decisions of the Apex Court fully explain away the grounds on which the Petitioner challenged the order of his compulsory retirement.
22 On the other hand, Respondent no.2 filed an affidavit 27th April, 2011 Nizamoddin A. Jamadar, Registrar (Legal and Research) High Court of Bombay for opposing the present Petition. The learned counsel appearing on behalf of Respondent no.2 submits that there is ::: Downloaded on - 09/06/2013 17:55:35 ::: 26 wp 5856.10.doc no substance in the present Petition and the same is liable to be dismissed with costs. He submits that the Review Committee took decision on 27th January, 2010 after considering the Adverse Confidential Reports (ACRs) of Petitioner for the year 2004-2005 and 2005-2006 and considering the overall performance of the Petitioner.
Pursuant to the said recommendation of the Review Committee, the Law and Judiciary Department passed the impugned order dated 26th February, 2010 in terms of Rules 17 and 19 of Chapter 5 of the Maharashtra Judicial Service Rules, 2008 and in terms of Sub-Part (I) of Part-A of Sub-rule 4 of Rule 10 of the Maharashtra Civil Services (Pension) Rules, 1982 of compulsory retirement of Petitioner on completion of his 55 years age in public interest. He submits that the Review Committee of Hon'ble Judges of the High Court considered the entire relevant material, evaluated overall performance of the Petitioner and assessed the importance of ACRs for the years 2004-2005 and 2005-2006, the Review Committee did not take into consideration the Reporting Judge's remarks in ACRs so far as reputation and integrity of the Petitioner for the years 2005-2006. He submits that on scrutiny of the service record of the Petitioner, the following facts emerged:
::: Downloaded on - 09/06/2013 17:55:35 :::27 wp 5856.10.doc "a) Although the disposal of the Petitioner was satisfactory and noteworthy, the net result of his ACRs for the years 2004-2005 and 2005-06 was rated "Below Average"
b) It was mentioned in the ACR for the years 2004-2005 and 2005-2006 that his knowledge of law and procedure was poor. Same was the remark about the quality of the judgment.
c) As far as reputation and integrity is concerned, the Hon'ble Guardian Judge, Hon'ble Dr. Justice D.Y. Chandrachud opined in ACR as follows:
2004-2005 Dubious behavior, integrity is seriously in doubt. Does not deserve to be retained in service.
2005-2006 Lacking in integrity, Dubious behavior. His continuance in the judiciary is undesirable.
In the ACR for the years 2004-2005 the general remark was "Corrupt Judicial Officer". Whereas in the ACR 2005-2006, the general remark was, "Serious allegation of corruption".
23 He submits that on the basis of these remarks the Review Committee of Hon'ble Judges of the High Court, recommended to the Government for compulsory retirement of the Petitioner at the age of ::: Downloaded on - 09/06/2013 17:55:35 ::: 28 wp 5856.10.doc 55 years. He submits that the decision of the Hon'ble Review Committee was duly communicated to the Government of Maharashtra, Law and Judiciary Department, Mantralaya, Mumbai by communication dated 5th February, 2010. He submits that in the ACR of Petitioner were written by the Guardian Judge for the year ending 31st March, 2005 and 31st March, 2006. The Petitioner was working as a Judge, City Civil and Sessions Court, Greater Bombay, therefore, considering the Petitioner's overall performance the Guardian Judge made those adverse remark in his CR.
24 He submits that the decision taken by the Review Committee on 6th April, 2010 was communicated to the Petitioner on 19th April, 2010 and finally he was served with the impugned order of compulsory retirement on 23rd April, 2010. Respondent no.2 considered the Petitioner's representation dated 8th March, 2010 and the same was rejected on 6th April, 2010. He submits that it is sufficient to take an action against the Judicial Officer if it is found that his integrity is doubtful. In the present case, the Guardian Judge specifically made remarks in Petitioner's two ACR about corruption i.e. "(a) 2004-2005:
Dubious behavior, integrity is seriously in doubt. Does not deserve to be retained in service. (b) 2005-2006: Lacking in integrity, dubious ::: Downloaded on - 09/06/2013 17:55:35 ::: 29 wp 5856.10.doc behavior. His continuance in the judiciary is undesirable. In the ACR for 2004-2005 the general remark is "corrupt judicial officer".
Whereas in ACR 2005-2006 general remark is "serious allegations of corruption.'' Though the said remarks were not communicated to the Petitioner, same cannot lose its value at the time of taking an action against the Petitioner. He further submits that the Judicial Officer's honesty and integrity should be reflected in their overall reputation.
There may not be a written complaint against the Judicial Officer about the corruption but the overall performance can make out those facts. He further submits that at the time of recommending the Petitioner's premature retirement the Review Committee has followed the procedure described by the law. In support of these submissions the learned counsel appearing on behalf of Respondent no.2 relies on the following authorities:
(1) Judgment dated 10th September, 2010 passed by the Apex Court in the mater of Pyare Mohanlal Vs. State of Jharkhand and Others reported in 2010 (10) SCC 693. In that case, the Apex Court held that law requires the authority to consider the entire service record of the employee while assessing whether he can be given compulsory ::: Downloaded on - 09/06/2013 17:55:35 ::: 30 wp 5856.10.doc retirement irrespective of the fact that adverse entries had not been communicated to him and the Officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an Officer even in the remote past is sufficient to award compulsory retirement. Para 29 of that authority reads thus:
"29. It is evident from the aforesaid service record of the petitioner that he remained an average officer throughout his service career and could never improve.
His out turn had been poor; he had been given adverse entries regarding his integrity/reputation as not good in the years 1999-2000 and remarks to that effect by the Inspecting Judges in 1997 and 2001-2002. The petitioner had made a bald assertion that the adverse entries have not yet been communicated to him. It has been repeatedly submitted by him that representations made by him against the said adverse entries had not been disposed of. Indisputably, uncommunicated adverse entries could be taken into account for the purpose of assessing an officer for compulsory retirement. The petitioner has not disclosed on what dates the representations against the adverse entries had been made. The petitioner had not challenged the said adverse entries, rather he considered it appropriate to challenge only the order of compulsory retirement which has been a consequential effect of such adverse entries. The law requires the Authority to consider the "entire service record" of the employee while assessing ::: Downloaded on - 09/06/2013 17:55:35 ::: 31 wp 5856.10.doc whether he can be given compulsory retirement irrespective of the fact that the adverse entries had not been communicated to him and the officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement. The case of a Judicial Officer is required to be examined, treating him to be differently from other wings of the society, as he is serving the State in a different capacity. The case of a Judicial Officer is considered by a Committee of Judges of the High Court duly constituted by Hon'ble the Chief Justice and then the report of the Committee is placed before the Full Court. A decision is taken by the Full Court after due deliberation on the matter. Therefore, there is hardly any chance to make the allegations of non- application of mind or mala fide."
(2) He also relied on the judgment in the matter of Rajendra Singh Varma (Dead) through L.Rs. vs. Lt. Governor of NCT of Delhi & Another reported in 2011 (10) SCALE 315. In that authority the Apex Court considered the several issues in respect of compulsory retirement at the age of 50/55 years. The Apex Court also considered the effect of honesty and integrity of a Judicial Officer, non communication of adverse remark, delay in making entry of adverse remark in CR, subsequent improvement of a Judicial Officer and the procedure to be followed for taking action against a Judicial Officer.
::: Downloaded on - 09/06/2013 17:55:35 :::32 wp 5856.10.doc The learned counsel appearing on behalf of Respondent no.2 submits that over all the entire case of the Petitioner is squarely covered by this judgment. He mainly relies on para 45, 88, 92, 98, 99, 115 and 119 which read thus:
" 45. Judicial service is not a service in the sense of an employment as is commonly understood. 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. 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. As explained by this Court in Chandra Singh and others Vs. State of Rajasthan & another (2003) 6 SCC 545, the power of compulsory retirement can be exercised at any time and that the power under Article 235 in this regard is not in any manner circumscribed by any rule or order. What is explained in the said decision by this Court is that Article 235 of the Constitution of India enables the High Court to assess the performance of any judicial officer at any time with a view to discipline the black sheep or weed out the deadwood, and this constitutional power of the High Court cannot be circumscribed by any rule or order. Moreover while upholding the orders of compulsory retirement of judicial officers who were working in the State of U.P., following weighty observations have been made by this Court in para 13 of decision in case of ::: Downloaded on - 09/06/2013 17:55:35 :::
33 wp 5856.10.doc Nawal Singh vs. State of U.P. and another (2003) 8 SCC 117:"
"13. It is to be reiterated that for keeping the stream of justice unpolluted, repeated scrutiny of service records of judicial officers after a specified age/completion of specified years of service provided under the Rules is a must by each and every High Court as the lower judiciary is the foundation of the judicial system. We hope that the High Courts would take appropriate steps regularly for weeding out the dead wood or the persons polluting the justice delivery system."
"88.Compulsory retirement from service is not considered to be a punishment. Under the relevant rules, an order of dismissal is a punishment laid on a Government servant when it is found that he has been guilty of misconduct or the like. It is penal in character because it involves loss of pension which under the Rules have accrued in respect of the service already put in. An order of removal also stands on the same footing as an order of dismissal and involves the same consequences, the only difference between them being that while a servant who is dismissed is not eligible for re-appointment, one who is removed is. A compulsory retirement is neither dismissal nor removal and differs from both of them, in that it is not a form of punishment prescribed by the rules and involves no penal consequences, in as much as the person retired is entitled to pension and other retiral benefits, proportionate to the period of service standing to his credit.::: Downloaded on - 09/06/2013 17:55:35 :::
34 wp 5856.10.doc
92. In State of U.P. and another vs. 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. Again, a three Judge Bench of this Court in Union of India vs. V.P. Seth and another 1994 SCC (L&S) 1052, has held that uncommunicated adverse remarks can be taken into consideration while passing the order of compulsory retirement. The bench in the said case made reference to Baikuntha Nath Das vs. Chief District Medical Officer, Baripada (1992) 2 SCC 299, as well as Posts and Telegraphs Board vs. C.S.N. Murthy (1992) 2 SCC 317, and after reiterating, with approval, the principles stated therein, has laid down firm proposition of law that 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. Applying the ratio laid down in the above-mentioned two cases to the facts of the present cases, this Court finds that the authorities concerned were justified in relying upon the adverse entry made against the two appellants and the deceased officer in the year 2000 indicating that their integrity ::: Downloaded on - 09/06/2013 17:55:35 ::: 35 wp 5856.10.doc was doubtful alongwith other materials. Here in these cases, the ACRs for the year 2000 were communicated to the three officers but before they could exercise the option given to them to make representation against the same, the orders of compulsory retirement were passed. When an uncommunicated adverse entry can be taken into consideration, while passing order of compulsory retirement, there is no reason to hold that adverse entry communicated, against which opportunity of making representation is denied, cannot be taken into consideration at the time of passing order of compulsory retirement. Merely because the two appellants and the deceased officer had no opportunity to make representation against the said entry or that the representation made against the same was pending, would not render consideration of the said entry illegal, in any manner, whatsoever."
"98. In Baikuntha Nath Das case, after referring to decision of this Court in Brij Mohan Singh Chopra Vs. 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 Vs. 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.::: Downloaded on - 09/06/2013 17:55:35 :::
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(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.
(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.
::: Downloaded on - 09/06/2013 17:55:35 :::37 wp 5856.10.doc Interference is permissible only on the grounds mentioned in (iii) above.."
"99.In view of the two three Judge Bench decisions of this Court mentioned above the contention that adverse remarks relating to integrity regarding which no opportunity of making representation was provided or pending representation was not considered and, therefore, orders of compulsory retirement were bad in law cannot be accepted. Therefore, the said contention is hereby rejected."
"115.On consideration of rival submissions, this Court finds that there is no manner of doubt that the nature of judicial service is such that the High Court cannot afford to suffer continuance in service of persons of doubtful integrity. Therefore, in High Court of Judicature at Bombay Through its Registrar Vs. Shirishkumar Rangrao Patil and Another, (1997) 6 SCC 339, this Court emphasized that it is necessary that there should be constant vigil by the High Court concerned on its subordinate judiciary and self introspection. 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.::: Downloaded on - 09/06/2013 17:55:35 :::
38 wp 5856.10.doc 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 officer concerned was promoted to higher position or whether he was granted certain benefits like increments etc. Therefore, this Court in State of Orissa and Others Vs. Ram Chandra Das, (1996) 5 SCC 331, observed as under in paragraph 7 of the reported decision :-
";........ it is settled law that the Government is required to consider the entire record of service...... .... We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of service or qualified period of service for pension."
"119.The argument that material was not supplied on the basis of which "`C' Doubtful Integrity" was awarded to the appellants and, therefore, the order of compulsory retirement is liable to be set aside has no substance. Normally and contextually word `material' means substance, matter, stuff, something, materiality, medium, data, facts, information, figures, notes etc. When this Court is examining as to whether there was any `material' before the High Court on the basis of which adverse remarks were recorded in the confidential ::: Downloaded on - 09/06/2013 17:55:35 :::
39 wp 5856.10.doc reports of the appellants, this `material' relates to substance, matter, data, information etc. While considering the case of a judicial officer it is not necessary to limit the `material' only to written complaints or `tangible' evidence pointing finger at the integrity of the judicial officer. Such an evidence may not be forthcoming in such cases."
(3) He also relied on judgment in the matter of Nawal Singh vs. State of U.P. and another reported in AIR 2003 SC 4303. In that case, the Apex Court held that source for taking action against Judicial Officer may or may not be in writing in written complaints only, action can be taken against Judicial Officer on the basis of his overall performance.
(4) He also relied on judgment in the matter of Posts and Telegraphs Board and Others vs. C.S.N. Murthy reported in 1992 (2) SCC 317. In that case, the Apex Court held that even though the earlier record of an employer is through out good but if latest adverse remarks goes against him then same constitute sufficient material for taking action against him.
25 On the basis of these submissions the learned counsel appearing on behalf of Respondent no.2 submits that considering the latest ::: Downloaded on - 09/06/2013 17:55:35 ::: 40 wp 5856.10.doc judgment of the Apex Court in the matter of Rajendra Singh Varma (dead) through L.Rs. (supra) there is no substance in the present Petition and the same is liable to be dismissed with costs.
26 The learned counsel appearing on behalf of Respondent no.1 also opposed the present Petition on the same grounds as advanced by the counsel for Respondent no.2.
27. We have carefully and anxiously considered the grounds on which the petitioner challenged his ACRs for the period 2004-05 and 2005-06 and the authorities relied upon by him in support of those challenges and also the submissions of the learned counsel for the respondent No.2 and the authorities relied upon by him in refuting the grounds on which the petitioner challenged those ACRs and we find the grounds on which the petitioner challenged those ACRs are not valid and they do not in any way vitiate those ACRs. Their Lordships of the Apex court in the latest judgment in the case of Rajendra Singh Verma (dead) through L.Rs. referred to above considered similar grounds and rejected them in the similar circumstances. Their Lordships observed that it has to be legitimately presumed that the ::: Downloaded on - 09/06/2013 17:55:35 ::: 41 wp 5856.10.doc Inspecting Judge, before making such remarks of serious nature, acted responsibly. Thereafter, the Full Court considered the entire issue and endorsed the view of the Inspecting Judge while recording the ACR of the appellants in that case. The same is the case herein. The ACRs herein were recorded by the Guardian Judge and they were endorsed by the Full court and therefore they cannot be discarded on the grounds on which the petitioner challenged them. It is pertinent to note that during the years 2004-2005 and 2005-2006 for which those ACRs were recorded, the petitioner was stationed at Mumbai as Tada Court Judge in the City Civil and Sessions Court Greater Bombay, and the Guardian judge was also stationed at the main seat of the Bombay High Court, at Mumbai and therefore the Guardian Judge must have had the sufficient opportunity to consider his judicial work and know his reputation as judicial officer. During the subsequent years the petitioner was on deputation at Mantralaya as Solicitor-cum-Joint Secretary to the Government of Maharashtra, Mumbai and thereafter the Petitioner was Principal District and Sessions Judge, Amravati and from there he was transferred as Principal District and Sessions Judge, Sangli. Hence the Guardian Judge during the period subsequent to the year 2004-2005 and 2005-2006, must not have found any deficiency ::: Downloaded on - 09/06/2013 17:55:35 ::: 42 wp 5856.10.doc in the Petitioner's judicial work and must not have noticed any incidence which affects the reputation of the Petitioner as judicial officer, and, therefore, in the C.R. for the subsequent year the Guardian Judge did not write anything against the petitioner; but from this it cannot be inferred that the serious adverse remarks made for the year 2004-05 and 2005-06 stand obliterated or erased. There is also no possibility of making the adverse entries in the ACR on account of the mistaken identity as alleged by the petitioner; nothing is brought on record or argued before us to substantiate the allegation that the adverse entries were made by the Guardian Judge on account of mistaken identity. As held by the Apex Court in the case of Rajendra Singh Verma (supra) it is not necessary that the Guardian Judge should receive the complaints in writing. Thus there is no substance in the argument advanced by the petitioner in challenging the ACRs for the years 2004-2005 and 2005-2006 on the basis of which the impugned order of premature retirement of the petitioner was passed.
28 The integrity is the foremost requirement of a judicial officer.
The great English Jurist and philosopher Francis Bacon has said, "Judges ought to be more learned than witty, more reverent than ::: Downloaded on - 09/06/2013 17:55:35 ::: 43 wp 5856.10.doc plausible and more advised than confident. Above all things, the integrity is their portion and proper virtue. Joseph Addison English Essayist says, "Justice discards party, friendship and kindred and is therefore, represented blind". Their Lordships of the Apex Court in the case of Rajendra Singh Verma (dead) through L.Rs. (supra) at page 345 of the report propound, "Judicial Service is not a service in the sense of an employment as is commonly understood. Judges are discharging the functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected beyond doubt. It should be reflected in their overall reputation. There is no manner of doubt that 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".
29 Their Lordships of the Supreme Court in the case of Rajendra Singh Verma (dead) through L.Rs. (supra) as regards the maintenability of a petition under Article 226 or Article 32 of the Constitution of India challenging the compulsory retirement of Judicial officer, laid down that when the appropriate authority forms bonafide opinion that compulsory retirement of Judicial officer is in ::: Downloaded on - 09/06/2013 17:55:35 ::: 44 wp 5856.10.doc the public interest, the Writ Court under Article 226 or the Apex Court under Article 32 of the Constitution would not interfere with the order.
The compulsory retirement order passed in the present case by the State Government on the recommendation of the High Court, does not cast any stigma on the petitioner. It can not be considered to be an order for dismissal or removal in the nature of penalty or punishment and therefore, it cannot be interfered with by this court in the writ jurisdiction under Article 226 of the constitution of India.
30 In the result, we find that there is no substance in the petition and it is liable to be dismissed and it is dismissed.
31 Rule is discharged.
32 No order as to costs.
(K.K.Tated, J.) (J.P. Devadhar, J.)
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