Allahabad High Court
Ram Murti Yadav vs State Of U.P. Thru ... on 23 May, 2018
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED A.F.R. Case :- SERVICE BENCH No. - 16040 of 2016 Petitioner :- Ram Murti Yadav Respondent :- State Of U.P. through Principal Secretary, Appointment & Personnel Department and Another Counsel for Petitioner :- Meenakshi Singh Parihar,Y.S.Lohit Counsel for Respondent :- C.S.C.,U.N. Misra Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Hon'ble Virendra Kumar-II, J.)
1. Heard Shri Y. S. Lohit, learned counsel for petitioner and Shri Upendra Nath Misra, learned counsel for the respondent No.1.
2. Retirement from service is a certainty but premature/ compulsory retirement is a calamity upon a person, who is compulsorily retired, which has always been questioned before the court of law, therefore, Ram Murti Yadav- a Judicial Officer, who has been compulsorily retired by the order dated 3.5.2016 issued by the State Government, has questioned the correctness and validity of the aforesaid order together with the recommendations dated 14.4.2016 of the Full Court communicated to the State government vide letter dated 19.4.2016. The petitioner inter-alia has also prayed for his reinstatement in service with all consequential benefits.
3. In brief the facts of the case are that the petitioner after being selected by the U.P. Public Service Commission, was appointed in judicial service on 26.03.1996 as Civil Judge (Junior Division). He was promoted to Class-I post as Civil Judge (Senior Division) on 15.12.2003. After being declared successful in the departmental examinations, the petitioner was appointed as Additional District & Sessions Judge (Fast Track Court)on 16.12.2008.
4. It has been averred by the petitioner that during the first year of service, the disposal of cases was 28.89% which was below prescribed standard, therefore, he was rated as fair officer, but on his representation the said remark was expunged by the High Court. According to the petitioner, while he was posted as Additional District & Sessions Judge (Fast Track Court) in the year 2008-09 to 2010-11, the pendency of cases in his court was less so he was not able to achieve the quota of disposal of 14 cases per month as required. For which he tendered his explanation, which was found to be satisfactory.
5. According to the petitioner, when the post of Additional District & Sessions Judge (Fast Track Court) ceased to exist, the petitioner held the post of Additional District & Sessions Judge (Ex-Cadre) with effect from 01.04.2011 and worked as such till 16.08.2013. Thereafter, on 16.08.2013 the petitioner was substantially promoted to the post of Additional District & Sessions Judge under Rule 22(1) of U.P. Judicial Officers Service Rules on the basis of merit-cum-seniority. Therefore, it is wrong to say that that the petitioner has become a dead wood that too when his integrity was certified during his service tenure of 20 years.
6. According to the learned Counsel for the petitioner, when he was posted as Chief Judicial Magistrate, Bhadohi, he had decided a Criminal Case No. 4670 of 2005 and had acquitted the accused vide judgment and order dated 17.09.2007. The complainant of this case, Shri Abdul Rub, made a complaint dated 06.10.2007 before the Hon'ble Chief Justice, levelling a number of allegations against the petitioner as well as his predecessors Shri Ram Kushal Verma. On receipt of the complaint, the District Judge called for the comments from the petitioner. In the meantime, Shri Abdul Rub moved another application dated 09.01.2008 before the Hon'ble Administrative Judge to which also petitioner tendered his comments on 28.05.2008. It is said that against the order of acquittal, an Appeal No. 90 of 2007 was filed by the State Government challenging the judgment and order dated 17.09.2007 passed by the petitioner. The learned Additional District & Sessions Judge, Bhadohi at Gyanpur allowed the said appeal vide judgment and order dated 06.02.2009 and the accused was convicted and sentenced to undergo imprisonment for various offences. Later on, accused Mohd. Ayub preferred a Criminal Appeal No. 914 of 2009 assailing the judgment and order dated 06.02.2009 delivered by the first appellate court, which is still pending before this Court.
7. Learned Counsel for the petitioner has submitted that the complaint made by Shri Abdul Rub was inquired by Shri G. K. Pandey, O.S.D., (Inquiry) of High Court, Allahabad, who submitted the inquiry report dated 10.05.2012. Surprisingly, the Inquiry Officer had scrutinized the merit of the judgment rendered by the petitioner, whereas Criminal Appeal No. 914 of 2014 is still sub-judice before this Court. The Inquiry Officer has also considered the comments of the Hon'ble Administrative Judge dated 24.02.2009, and after considering the statements of the complainant Abdul Rub and Shri Farooque Ahmad (witness), the Inquiry Officer has held that Shri Abdul Rub has corroborated the factum of making complaint to the High Court. However, the Inquiry Officer has mentioned that though the complainant has said that through the brother-in-law of the accused, some illegal gratification was taken by the petitioner, but during his cross-examination, the complainant has denied the fact of seeing any person giving money or anything to the petitioner as illegal gratification. The complainant had also accepted this fact that the whole basis for making statement of receiving illegal gratification by the petitioner was that he delivered the judgment of acquittal despite sufficient evidence on record.
8. According to the petitioner, the Inquiry Officer has come to conclusion that there was no direct or circumstantial evidence against the petitioner of taking any bribe or he was ever approached for acquittal of the accused-Mohd. Ayub. The Inquiry Officer after going through the judgment of the Appellate Court and the discussions made by the First Appellate Court as well as on perusal of record, observed that there was no direct proof of taking any illegal gratification or any extraneous consideration, but deviation from the logical conclusion on the basis of the evidence on record, can well be inferred to be due to some extraneous reasons.
9. The petitioner has contended that on perusal of inquiry report, it is evident that there was no evidence against the petitioner and it was based on surmises and conjectures. The Inquiry Officer has recorded perverse findings regarding inference against the petitioner, whereas he himself has come to the conclusion that there was no direct proof of taking any illegal gratification or any extraneous consideration. The Inquiry Officer has no business to comment on the prudence of the petitioner and hold that there was deviation from the logical conclusion on the basis of evidence on record, while giving judgment, which he had delivered while discharging his judicial function. Therefore, there was no occasion for the Inquiry Officer to assess and scrutinize the merits of the judgment rendered by the petitioner, which can only be scrutinized on judicial side by the superior courts.
10. According to the petitioner, he submitted his comments on 28.06.2012 against the inquiry report dated 10.05.2012, in which he has specifically mentioned that the Inquiry Officer, being subordinate to the Hon'ble Judge, has submitted the inquiry report on the basis of observations made by the Hon'ble Administrative Judge, which is against the principle of natural justice. The petitioner requested that the inquiry should be conducted by the Senior Judge of this Court. He also clarified that he had not committed any misconduct, while deciding the aforesaid criminal case in any way and also in past neither the Appellate Court nor the High Court has commented on his working at judicial side.
11. It has been submitted that the petitioner was informed vide letter dated 20.12.2012 written by the Registrar (Confidential) of this Court that on the basis of inquiry report submitted by the Inquiry Officer, this Court has been pleased to incorporate the censure entry in the character roll of the petitioner regarding acquittal of accused Mohd. Ayub in Criminal Case No. 4670 of 2005 despite there being substantial evidence on record to convict the said accused, he has delivered impugned judgment for extraneous considerations. Thus, it is clear that despite the fact that no direct proof of any illegal gratification or any extraneous consideration, the Inquiry Officer has recorded incorrect finding that "deviation from the logical conclusion on the basis of evidence on record can well be inferred to be due to some extraneous reasons".
12. According to the learned Counsel for the petitioner despite censure entry having been recorded in his character roll, he was promoted to the post of Additional District & Sessions Judge on 16.08.2013 under Rule 22(1) of Higher Judicial Service Rules. As such, under service jurisprudence, the presumption would be that all the adverse entries made in the character roll of petitioner before the date of promotion has been washed away. It has been urged that after promotion being made on the basis of merit-cum-seniority, therefore, merit of petitioner was judged at the time of promotion ignoring the censure entry. After promotion of the petitioner no action affecting the service of petitioner can be taken.
13. According to the learned Counsel for the petitioner, a Screening Committee comprising three Hon'ble Judges was constituted and the said committee made recommendations dated 01.04.2014. The said recommendations were considered by the Full Court which resolved that 15 members including the petitioner were to be retired compulsorily under Rule 56(c) of the Fundamental Rules.
14. Commenting upon the report of the Screening Committee, it has been pointed out by the learned Counsel for the petitioner that on 22.01.2013 the Committee had considered the matter of the petitioner, but it was deferred for the reason that in 1996-97 the petitioner had 29.89% out turn with sufficient explanation and he was rated as fair officer, but the said adverse remark was expunged. It was also recorded by the Screening Committee that in the year 2008-09 to 2010-11 out turn of petitioner was marginally low, but it was found to be satisfactory. It was also found by the Screening Committee that in V. B. Enquiry No. 26/ 09 concerning acquittal order passed in Criminal Case No. 4670 of 2005, State Vs. Mohd. Ayub, under Sections 467, 468, 471, 474, 420, 406 and 120-B IPC, P.S. Bhadohi, the petitioner has been held guilty and punished with censure. In another V. B. Entry No. 06/ 2009, a report dated 10.05.2012, exonerating him has been submitted by O.S.D. (Enquiry) and matter has been dropped vide A.C. Meeting held on 31.05.2012 and in view of the above details, the Committee resolved to defer the case.
15. However, a perusal of the minutes dated 14.04.2016 of the Full Court, it appears that the Full Court considered V. B. Enquiry No. 6/ 2009 wherein the petitioner was exonerated and further, the inquiry No. 26/ 09 which relates to the acquittal order passed by the petitioner for which censure entry was awarded to the petitioner. The Screening Committee, after considering overall service record of petitioner, has recommended that petitioner be compulsorily retired on the same grounds. It has been urged by the petitioner that there was no fresh material available against the petitioner. The Full Court has not considered the fact that the impugned judgment rendered by the petitioner is still sub-judice in Criminal Appeal No. 914 of 2009 pending before this Court. The same is to be decided on merit and as such any action could have been taken only after the final judgment of this Court. The fact of promotion of petitioner on the post of Additional District & Sessions Judge, on the basis of merit-cum-seniority under Rule 22(1) of Higher Judicial Service Rules was also not considered by the Full Court and as such, on the basis of aforesaid censure entry the petitioner could not have been compulsorily retired. The findings recorded by the Inquiry Officer as well as the decision taken by this Hon'ble Court recommending for compulsory retirement of petitioner is wholly unjustified and unreasonable as there was no adverse material against the petitioner.
16. Attacking the decision of the Full Court, learned Counsel for the petitioner has submitted that after the judgment rendered by him, acquitting the accused person in Criminal Case No. 4670 of 2005, about nine years have elapsed and during this period nothing adverse has been reported against the petitioner rather his integrity has been certified and he has also been allowed to cross efficiency bar. As such while considering the service record of petitioner, the stale matter should not have been taken into consideration rather the decent service record of petitioner ought to have been considered while exercising power under para-56(C) of the Fundamental Rules. The judgment dated 17.09.2007 was delivered by petitioner exercising his judicial functions and it cannot be a ground for compulsory retirement treating the same adverse against the petitioner and there is total non application of mind in taking the impugned decision and further the State Government without applying its independent mind passed the order dated 3.5.2016 compulsorily retiring the petitioner in public interest.
17. To strengthen his aforesaid arguments, learned Counsel for the petitioner has relied upon the decision rendered in High Court of Judicature at Allahabad versus Sarnam Singh and another; 2000(84) FLR 444, Rajesh Gupta versus State of Jammu & Kashmir;(2013) 3 SCC 514, Nirmala Jhala versus State of Gujarat (2013)SCC 301, State of Gujarat versus Umedbhai M.Patel (2001) 2 SCC 314, Ajay Kumar Srivastava versus High Court of Judicature at Patna and others (decided on 29.7.2015), Bishwanat Prasad Singh versus State of Bihar, Rajkasthan State Road Transportation versus Babu Lal Jangir (decided on 16.9.2013) Baikunth Nath Das and another versus Chief District Medical Officer and another ;AIR 1992 SC 1020, P.C.Joshi versus State of U.P. and others; (2001)6 SCC 491, Anwar Husain versus Ajoy Kumar Mukherjee and others AIR 1965 SC 1651, Amar Pal Singh versus State of UP (2012) 6 SCC 491 and K.P.Tiwari versus State of MP; (1994) AIR SC 1031.
18. Relying upon Baikuntha Nath Das case [supra]the learned Counsel for the petitioner has submitted that the appointing authority was bound to consider the entire record of service before taking a decision in the matter as held in the said case. In this case it was further held that 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.
19. Learned counsel for the petitioner, while relying upon the above mentioned exposition of law laid down in the cases, referred to above, has submitted that Full Court resolution dated 14.04.2016 passed in exercise of powers conferred under Rule 56(c) of Para-II to IV of the Chapter-II of the Financial Hand Book, is based only on the censure entry incorporated in his character roll, which was communicated vide letter dated 20.12.2012.
20. Clarifying the position, it has been submitted that the said censure entry has been awarded to the petitioner on the basis of the impugned judgment dated 17.09.2007 delivered by the petitioner in Criminal Case No. 4670 of 2005, State Vs. Mohd. Ayub for the offences punishable under Sections 467, 468, 471, 474, 420, 406 and 120-B IPC, P.S. Bhadohi, District Bhadohi. The said matter is still sub-judice in Criminal Appeal No. 914 of 2009 preferred by the accused Mohd. Ayub.
21. The afore-captioned writ petition was seriously contested by the respondent No.2 by filing counter affidavit of O.S.D.(J)(Litigation), High Court, Lucknow Bench, Lucknow, wherein it has been stated that the order of compulsory retirement dated 03.05.2016 passed against the petitioner has been passed in accordance with the provisions of Rule-56(C) of the U.P. Fundamental Rules. The remarks recorded by the Court during the year 1996-97 has been mentioned in para-5 of the counter affidavit which shows that the petitioner was rated as fair officer as assessed by the District Judge. The petitioner moved representation dated 28.04.1998 against the above mentioned adverse remark recorded by the Court for the year 1996-97 and after consideration of representation, the following portion of remarks was expunged by the Court:
"Disposal much below standard, it being only 22.89%. The officer has submitted explanation for the shortage of work which was not found satisfactory by the District Judge."
The petitioner was accordingly informed vide Court's D.O. letter dated 12.10.1998. It is to be noted that the portion of remarks that petitioner was assessed fair officer by the District Judge has not been expunged.
22. In the counter affidavit it has also been stated that that in the year 2008-09, 2009-10 and 2010-11, remarks were recorded by this Court and these remarks have been mentioned in para-6 of the counter affidavit. In the year 2008-09 it was recorded by this Court that the petitioner has given explanation of short disposal in Fast Track Court which deems to be satisfactory. In the year 2009-10 and 2010-11 it was recorded that his disposal of work is inadequate. However, the reasons given by the officer for short disposal were found satisfactory by the District Judge.
23. Learned Counsel for the respondent has vehemently argued that the petitioner's promotion dated 16.08.2013 to the post of Additional District & Sessions Judge under Rule 22(1) of U.P. Higher Judicial Service Rules, 1975 would not wash the adverse material which existed against the petitioner in view of the judgment of the Apex Court in the case of Pyare Mohan Lal Vs. State of Jharkhand : (2010) 10 SCC 693 wherein it has been observed that even when a government employee is promoted on the basis of merit, the adverse entries against the employees does not get washed off as the "washing-off" theory is not applicable in the consideration of an employee for compulsory retirement.
24. As regard the V.B. Enquiry No. 26/2009 is concerned, it has been submitted that proceedings were initiated against the petitioner with respect to the judgment of acquittal dated 17.09.2007 delivered by the petitioner in Criminal Case No. 4670 of 2005, State Vs. Mohd. Ayub, under Sections 467, 468, 471, 420, 406, 120-B IPC, P.S. Bhadohi, District Sant Ravi Das Nagar, Bhadohi for which a complaint was made against the petitioner by the complainant. In the said case, as averred above, the petitioner had acquitted the accused Mohd. Ayub of the charges levelled against him.
25. It has been submitted that in the inquiry report it is mentioned that the complainant specifically alleged that the accused Mohd. Ayub played fraud on the complainant and caused loss of several lacs of rupees to the complainant and also loss of foreign exchange to the Government of India. There was overwhelming evidence against the accused for conviction under the above mentioned sections, but the petitioner due to ulterior motives acquitted the accused Mohd. Ayub.
26. In the inquiry report, it is also mentioned that against the order of acquittal, the State preferred Criminal Appeal No. 90 of 2007, State Vs. Mohd. Ayub before the Sessions Judge, Bhadohi. This appeal was decided by Shri B. D. Mishra, Additional Sessions Judge, Court No.1, Bhadohi vide judgment and order dated 06.02.2009 and the appellate court reversed the impugned judgment and order dated 17.09.2007 passed by the petitioner and allowed the appeal. The accused Mohd. Ayub was convicted for the offences under the above mentioned sections. He was sentenced to ten years' rigorous imprisonment and was also sentenced for various terms in different sections and fine was also imposed upon him.
27. The Administrative Judge of judgeship Bhadoi perused both the judgments delivered by the Trial Court and the First Appellate Court and observed that despite of overwhelming evidence available on record of criminal case to substantiate the allegation of prosecution, the acquittal was done by the C.J.M. concerned. Under these circumstances, vigilance inquiry was recommended by the Administrative Judge. The recommendations of the Administrative Judge were placed before the Hon'ble Chief Justice. Vigilance inquiry (V.B. Enquiry No. 26 of 2009) was initiated against the petitioner. The Hon'ble Administrative Committee of this Court passed the following resolution in the meeting held on 31.05.2012 on the basis of inquiry report dated 10.05.2012 submitted by Shri G. K. Pandey, O.S.D.(Enquiry), High Court, Allahabad:-
"(a). Considered the enquiry report dated 10.05.2012 submitted by Sri G. K. Pandey, O.S.D.(Enquiry), High Court, Allahabad in V.B.enquiry no.26 of 2009 against the officer concerned.
It is resolved that after providing a copy of the enquiry report to the officer concerned, an explanation be called for from him.
Registry to take follow up action."
28. It is further pleaded that photocopy of the inquiry report dated 10.05.2012 was sent to the District Judge, Mainpuri for being furnished to the petitioner for his explanation vide Court's D.O. letter dated 11.06.2012. The petitioner submitted his explanation/ comments dated 28.06.2012. The Administrative Committee in its meeting held on 27.09.2012 passed the following resolution:
"Considered the explanation/ comments dated 28.06.2012 of the officer concerned on the enquiry report dated 10.05.2012 submitted by Sri G. K. Pandey, O.S.D.(Enquiry), High Court, Allahabad in V.B. Enquiry No. 26 of 2009 alongwith office note dated 30.08.2012 in the matter.
Resolved that the enquiry report dated 10.5.2012 submitted by Sri G.K.Pandey, O.S.D.(Enquiry), High Court, Allahabad against Sri Ram Murti Yadav, Additional District & Sessions Judge, Ex. Cadre, Mainpuri in V.B.Enquiry No.26 of 2009 be accepted.
Further resolved that punishment of censure be inflicted on the aforesaid officer.
Registry to take follow up action."
It is in the backdrop of the aforesaid reasons that a censure entry was incorporated in the character roll of the petitioner.
29. It has been vehemently asserted by the respondent that the pendency of Criminal Appeal No. 914 of 2009 has no bearing with the censure entry awarded to the petitioner. Moreover, regarding validity of the order of compulsory retirement passed in pursuance of the Full Court resolution dated 14.04.2016, it is submitted that the Hon'ble Apex Court in the case of Rajendra Singh Verma Vs. Lt. Governor (NCT Delhi) : (2011) 10 SCC 1 has held that judicial review of an exercise undertaken by the Full Court for compulsory retirement of a judicial officer is permissible only in "extraordinary cases when the Court is convinced that some real injustice, which ought not to have taken place, has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/ Full Court."
30. Lastly, it has been argued that the order of compulsory retirement dated 03.05.2016 is based on the overall service record of the petitioner and especially in light of the observation that, "despite the fact of no direct proof of taking any illegal gratification or any extraneous consideration, but deviation from the logical conclusion on the basis of the evidence on record can well be inferred to be due to some extraneous reasons.
31. To substantiate his argument that even a single entry touching the integrity of an office can justify compulsory retirement under Fundamental Rule 56, respondent's Counsel has placed reliance upon the judgment rendered in 2002 (3) SCC 641; State of U.P. Vs. Vijay Kumar Jain, 2010 (10) SCC 693; Pyare Mohan Lal Vs. State of Jharkhand, 2001 (3) SCC 314. He has further argued that adequacy or sufficiency of material for the purposes of compulsory retirement cannot be gone into by the Court while examining the record under the power of judicial review as held in the case of R.C.Chandel versus High Court of M.P.; 2012(8) SCC 58. Lastly, relying upon the decision rendered in Rajendra Singh Verma (Dead) Through Lrs and others Versus Lieutenant Governor (NCT of Delhi) and others; 2011(10) SCC 1 it has been urged that the evaluation made by the Committee/Full Court forming their unanimous opinion cannot be subjected to judicial review.
32. Having heard learned Counsel for the parties and going through the record, first of all, it would be useful to mention that the object of compulsory retirement from service is to weed out the dead wood in order to maintain a high standard of efficiency and honesty and to keep the judicial service unpolluted. The assertion of the appellant has to be appreciated on the basis of settled law on the subject of compulsory retirement. The verdict given by the Apex Court in Baikuntha Nath Das V. Chief District Medical Officer; reported in (1992) 2 SCC 1010, is the leading case in respect of compulsory retirement, which has laid down certain criteria, which, on reproduction, reads as under:-
"(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be 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."
The aforesaid principles have been considered and reiterated by the Apex Court in the case reported in 2001(3) SCC 314; State of Guarajt V. Umedbhai M. Patel which sum up the points in para-11 as under:
"(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead- wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even un-communicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."
33. In the case of State of U.P. vs. Vijay Kumar Jain; reported in 2002 (3) SCC 641, which has been relied upon by the respondent, the Hon'ble Apex Court has held that withholding of integrity of a government employee is a serious matter and single adverse entry in itself is sufficient to compulsorily retire an incumbent from service. Relevant para-16 of the said judgment is reproduced as under:-
"Withholding of integrity of a government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13.6.1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory retirement. During pendency of the writ petition in the High Court, the U.P. Services Tribunal on a claim petition filed by the respondent, shifted the entry from 1997-98 to 1983-84. Shifting of the said entry to a different period or entry going beyond ten years of passing of order of compulsory retirement does not mean that its vigour and sting of the adverse entry is lost. Vigour or sting of an adverse entry is not wiped out merely it is relatable to 11th or 12th years of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from service, was duly considered by the State Government and said single adverse entry in itself was sufficient to compulsorily retire the respondent from service. We are, therefore, of the view that entire service record or confidential report with emphasis on the later entries in the character roll can be taken into account by the government while considering a case for compulsory retirement of a government servant."
34. The same view has been reiterated by the Hon'ble Apex Court in a case reported in 2010 (10) SCC 693; Pyare Mohan Lal vs. State of Jharkhand holding that vigour or sting of an adverse entry is not wiped out merely it relates to the remote past.
35. In regard to the integrity of a Judge, the Hon'ble Supreme Court has held in para-21 of C. Ravichandran Iyer Vs. Justice A.M. Bhattacharjee and others (1995) 5 SCC 457 as under:-
"Judicial office is essentially a public trust. Society is, therefore, entitled to except that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of conduct and rectitude from a Judge. Unwritten code of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only of the Judge but the court itself. It is, therefore, a basic requirement that a Judge's official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than expected of a layman and also higher than expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society."
36. In view of the aforesaid discussions, we are of the considered opinion that even a single adverse entry and withholding of integrity or evaluation of entire service record is sufficient to retire compulsorily a Judicial Officer. The Hon'ble Apex Court in the judgments, referred to above, has held that for better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service of the officer giving due weightage to the record of performance during the later years. Upon consideration of the record of an employee if it is found that he is no longer useful to the general administration, he should be compulsorily retired from the service for the sake of public interest.
37. At this juncture, it may be added that by catena of judgments it has been held that the nature of judicial service is such that it cannot afford to suffer continuance in service The Hon'ble Supreme Court has also held that once an evaluation has been done by the Committee of High Court Judges, it does not require any interference. The relevant part of the judgment Naval Singh Vs. State of U.P. and Another (2003) 8 SCC 117 which reads as under:-
"At the outset, it is to be reiterated that the judicial service is not a service in the sense of an employment. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because order of compulsory retirement is based on the subjective satisfaction of the Authority."
38. The submission of the learned counsel for the petitioner that the impugned order has been passed merely relying on the recommendation of Full Court without application of mind is also misconceived because when once the Hon'ble Full Court, after considering the matter in its totality, recommended for compulsory retirement of the petitioner, then the order passed by the Government being an appointing authority, cannot be faulted. In this context, para-16 of a decision reported in 2012 (8) SCC 58; R.C. Chandel vs. High Court of M.P. is reproduced as under:-
"16. That power of the High Court to recommend to the Government to compulsorily retire a judicial officer on attaining the required length of service or requisite age and consequent action by the Government on such recommendation are beyond any doubt."
39. In Rajendra Singh Verma (Dead) through Lrs. And others Vs. Lieutenant Governor (NCT of Delhi);2011(10) SCC 1 and others, the Apex Court while observing that 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; and their honesty and integrity is expected to be beyond doubt observed:-
"217. Having regard to their entire service record of the three officers, this Court is of the opinion that the competent authority was justified in passing the order retiring them compulsorily from service. Mere glance at the ACRs of the deceased officer and two other appellants makes it so glaring that on the basis thereof the decision to compulsorily retire them would clearly be without blemish and will have to be treated as well founded. This Court finds that before passing the orders in question, whole service record of each of the officer was taken into consideration. Keeping in view the comprehensive assessment of service record, the Screening Committee rightly recommended that the three officers should be prematurely retired in public interest forthwith. The Full Court after considering the report of the Screening Committee and also after taking into consideration the record of work and conduct, general reputation and service record of the three officers correctly resolved that it be recommended to the Lt. Governor of NCT of Delhi to retire the judicial officers forthwith in public interest. The orders do not entail any punishment in the sense that all the officers have been paid retiral benefits till they were compulsorily retired from service.
218. On a careful consideration of the entire material, it must be held that the evaluation made by the Committee/Full Court, forming their unanimous opinion, is neither so arbitrary nor capricious nor can be said to be so irrational, so as to shock the conscience of this Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions, a vast range of multiple factors play a vital and important role and no one factor should be allowed to be blown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. In the very nature of things, it would be difficult,nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court is convinced that some real injustice, which ought not to have taken place, has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court."
40. As regard the assertion of the petitioner that after his promotion on the post of Additional District Judge, any adverse remark will stand washed off and has no significance, we would like to mention that in view of the law laid down in State of Orissa Versus Ram Chandra Das; 1996 (5) SCC 331, Pyare Mohan Lal versus State of Jharkhand; 2010(10) SCC 693, Rajasthan RTC versus Babu Lal; 2013(10) SCC 551 and Punjab State Power Corporation versus Hari Kishan; 2015(13) SCC 156 the said assertion of the petitioner is misconceived as the theory of washed-off has no application when the case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. Therefore, the remarks prior to the promotion or crossing of efficiency bar or picking up higher rank are not wiped off and can be taken into account while considering the overall performance of the employee when it comes to the consideration of case of that employee for premature retirement. At this juncture, it would be useful to reproduce the observations made in the Punjab State Power Corporation Ltd. Versus Hari Kishan Verma (supra):-
"13.Prior to dwelling upon the issue whether the order passed in this case is stigmatic or not, we think it appropriate to deal with the contention whether the past entries prior to the conferment of benefit of promotion have lost their significance and hence, the competent authority could not have relied upon the same while passing an order of compulsory retirement. There is no cavil over the fact that the respondent was extended the benefit of promotion to the higher post. The issue that has been raised by the learned counsel for the respondent is that after the promotion the earlier adverse entries totally lost their signification. To appreciate the said submission, we think it appropriate to refer to certain authorities in the field.
"14.In State of Orissa v. Ram Chandra Das, (1996) 5 SCC 331 a three-Judge Bench has emphatically held that object behind compulsory retirement is public interest and, therefore, even if an employee has been subsequently promoted, the previous entries do not melt into insignificance. To quote (SCC pp.333-34,para 7) "7. ... Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. 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."
15. The aforesaid dictum has been approved and followed in State of Gujarat v. Umedbhai M. Patel, (2001) 3 SCC 314 wherein emphasis has been laid on the factum that entire service record of the government servant is to be examined. Same principle has also been followed in another three-Judge Bench decision in Pyare Mohan Lal v. State of Jharkhand and Others, (2010) 10 SCC 693 Slightly recently, a Division Bench in Rajasthan SRTC v. Babulal Jangir, (2013) 10 SCC 551, after discussing number of authorities, has held thus:-
"22. It clearly follows from the above that the clarification given by a two-Judge Bench judgment in Badrinath v. State of Tamil Nadu, (2000) 8 SCC 395 is not correct and the observations of this Court in State of Punjab v. Gurdas Singh, (1998) 4 SCC 92 to the effect that the adverse entries prior to the promotion or crossing of efficiency bar or picking up higher rank are not wiped off and can be taken into account while considering the overall performance of the employee when it comes to the consideration of case of that employee for premature retirement.
23. The principle of law which is clarified and stands crystallised after the judgment in Pyare Mohan Lal v. State of Jharkhand is that after the promotion of an employee the adverse entries prior thereto would have no relevance and can be treated as wiped off when the case of the government employee is to be considered for further promotion. However, this "washed-off theory" will have no application when the case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. The rationale given is that since such an assessment is based on "entire service record", there is no question of not taking into consideration the earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into consideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person then that may be sufficient to justify the order of premature retirement of the government servant."
41. In view of the aforesaid legal proposition, there can be no iota of doubt that the entire record can be scrutinized by the employer to adjudge the justification of continuance of the employee after reaching a particular age as contemplated in the Regulations.
42. Apart from above, we would like to mention that we have gone through record including service bio-data and the annual remarks for the year 1996-97, 2008-09, 2009-10 and 2010-11. In the year 1996-97, following remarks were recorded against the petitioner:-
"Disposal much below standard, it being only 22.89%. The officer has submitted explanation for the shortage of work which was not found satisfactory by the District Judge. Punctual in sitting in the Court. Fair and impartial in dealing with the public and bar. Relations with the members of the bar and behaviour in relation to brother officers fair. Amenable to advice of the District Judge and other superior officers. A fair officer as assessed by the District Judge. Integrity is certified.
43. The petitioner had moved his representation dated 28.04.1998 against the above mentioned adverse remarks recorded by the Court for the year 1996-97 and after consideration of the representation the following portion of the remarks occurring in the Court's remarks has been expunged:
"Disposal much below standard, it being only 22.89%. The officer has submitted explanation for the shortage of work which was not found satisfactory by the District Judge."
The petitioner was accordingly informed vide Court's D.O. letter dated 12.10.1998.
44. Thus from the facts stated hereinabove, it is imminently clear that the remark, "a fair officer as assessed by the District Judge" was not expunged by the Court. The petitioner was rated as fair officer by the District Judge.
45. Here, it would be relevant to mention that in the year 2008-09, following remarks were observed by the Court :
1.g. Whether disposal of work is inadequate. (Give percentage and reasons for short disposal, if any) Note: The following factors should also be indicated in filling up this column :
(i) Number of cases decided after actual full contest:
(ii) Number of cases decided wherein all witnesses of fact turned hostile and the case ended in acquittal.
(iii) Number of civil cases decided on compromise/alternate dispute resolution.
(iv) Number of cases wherein after conclusion of arguments and reserving them for judgment, rehearing was ordered.
120.95% He has decided 24 Sessions Trials including one case of N.D.P.S. Act. The standard prescribed in F.T.C.Court is 14 cases per month hence the disposal is inadequate but the percentage of work is adequate.
20 S.T. & 1 Crl. Case as F.T.C. & 129 cases as C.J.M. 12 cases Nil Nil
4.Other remarks, if any He has given the explanation of short disposal in F.T.C. Court which deems to be satisfactory.
46. In the year 2008-09, the petitioner was posted as Additional District & Sessions Judge, Fast Track Court and it was found that he decided 24 Sessions Trials including one case of N.D.P.S. Act. The standard prescribed in Fast Track Court was 14 cases per month, hence his disposal was found inadequate. But his percentage of work was found 120.95%. After considering the comments of petitioner, it was recorded by the Court that the explanation given by the officer for short disposal is satisfactory.
47. In the next year i.e.2009-10, following remarks were recorded:
"............... The officer was required to dispose of 168 Sessions Trial in a year @ 14 Sessions Trial per month, but, he has disposed of 93 Sessions Trial only. Besides it, he has disposed of 10 criminal cases under N.D.P.S. Act, 14 criminal revisions, 3 criminal appeals and 11 civil appeals. The out-turn prescribed for the Fast Track Court is different than that of the out-turn prescribed for regular court and the out-turn of the Fast Track Court cannot be calculated in percentage. Thus, his disposal of work is inadequate. However, the reasons given by the officer for short disposal were found satisfactory by the District Judge................."
48. Thus it is clear that in the year 2009-10, the disposal of work of the petitioner was found inadquate. Similar was the position in the year 2010-11,as would be evident from the remarks recorded in the aforesaid year, which reads as under:-
"............... The officer was required to dispose of 168 Sessions Trial in a year @ 14 Sessions Trial per month, but, he has disposed of 99 Sessions Trial only. Besides it, he has disposed of 14 criminal cases under N.D.P.S. Act, 18 criminal revisions, 3 criminal appeals and 1 miscellaneous appeal. The out-turn prescribed for the Fast Track Court is different than that of the out-turn prescribed for regular court and the out-turn of the Fast Track Court cannot be calculated in percentage. Thus, his disposal of work is inadequate. However, the reasons given by the officer for short disposal were found satisfactory by the District Judge................."
49. On perusal of these annual remarks of the petitioner, his disposal of work in the year 1996-97 as Civil Judge (Junior Division) and in the year 2008-09, 2009-10 and 2010-11 as Additional District & Sessions Judge was found inadequate.
50. Learned counsel for the petitioner has vehemently argued that during the course of trial of Criminal Case No. 4670 of 2005, State Vs. Mohd. Ayub, only two witnesses of fact, Shri Abdul Rub, P.W.1, power of attorney of complainant Smt. Ishrat Parveen and P.W.2, Smt. Ishrat Parveen were examined and they were declared hostile by the Prosecuting Officer and the petitioner, after considering the evidence available on record had discharged his judicial functions and acquitted the accused Mohd. Ayub, as evidence was deficient against him.
51. We have perused the statement of P.W.1, Abdul Rub and P.W.2, Smt. Ishrat Parveen, which were also considered by the Appellate Court.
52. It is pertinent to mention here that P.W.1 had corroborated the facts narrated in the F.I.R. and after recording of cross-examination to some extent, he was declared hostile. In his examination- in-chief and some cross-examination, he has corroborated the version of the prosecution. His statement was appreciated by the Appellate Court in correct perspective. The Appellate Court has recorded positive finding that accused Mohd. Ayub received original documents and bill of lading relating to articles supplied by the complainant and delivery of these articles were also received by the accused and his associate, co-accused Ahasan Jamil Khan.
As per prosecution version, a proforma invoice was sent on 14.08.2003 through fax to M/s. Kalantari GMBH which was confirmed by Shri Ahasan Jamil Khan on 26.08.2003 and requested for sending the article at an early date. Thereafter 148 woolen carpet worth Rs. 11,88,000/- was sent through Mumbai shipment through bill of lading No. J.N.P./H.A.M./18254 dated 13.09.2003 and the sender firm submitted all the original papers of bill, invoice bill of exchange, insurance policy papers and original bill of lading, etc., to Bank of India, Ansari House, New Market, Bhadohi on 19.09.2003 with a direction to send it to the foreign Bank and after receiving the amount for depositing it to its account, all the original papers were sent by the Bank on 25.09.2003 to the Bank of the purchaser Deutsche Bank Filalo, Hamburg Seeburg Spitel Strasse 16-20095 Hamburg, Germany for payment. Co-accused Ahasan Jamil Khan paid 4232.19 Euro cash to accused Mohd. Ayub. Further, 50% amount was to be paid in August, 2004. Letter 61-A was written by the accused. The articles supplied by the complainant were delivered to accused Mohd. Ayub and his associate Ahasan Jamil Khan. The accused Mohd. Ayub had received payment and delivery of articles, even then the cost of articles was not paid to the plaintiff firm. The accused Mohd. Ayub and co-accused Ehasan Jamil Khan conspired and prepared the forged and fabricated order sheet and on the basis of which articles were obtained at Germany. Accused Mohd. Ayub and co-accused issued forged cheques to the complainant and cost of articles Rs.11,88,000/- was misappropriated by the accused persons. Therefore, the First Appellate Court recorded finding that there was sufficient evidence available against the accused Mohd. Ayub and offences punishable under Sections 467, 468, 471, 474, 420, 406 and 120-B IPC were proved against him. Accused Mohd. Ayub was convicted and sentenced accordingly vide judgment and order dated 06.02.2009.
53. On the basis of above facts and circumstances, Inquiry Officer has recorded its findings in correct perspective that the petitioner had delivered the judgment dated 17.09.2007 for extraneous consideration. On the basis of findings recorded by the Inquiry Officer, censure entry was recorded relating to this inference drawn by the Inquiry Officer. This censure entry, by implication, relates to the integrity of the petitioner. Therefore, there is no substance in the argument of the learned counsel for petitioner that the Inquiry Officer was not entitled to scrutinize the judgment delivered by the petitioner and the First Appellate Court. Moreover, the complainant corroborated his complaint during the course of inquiry conducted by the O.S.D.(Enquiry), Allahabad High Court. The complainant as P.W.1 had also corroborated the facts narrated in the FIR during the course of trial of Criminal Case No. 4670 of 2005.
54. Since censure entry relating to integrity of the petitioner has not been expunged till date, the pendency of Criminal Appeal No. 914 of 2009 preferred by the accused Mohd. Ayub has no bearing with the censure entry awarded to the petitioner. Screening Committee considered the matter of compulsory retirement of petitioner according to the provisions of Rule 56(c) of Fundamental Rules and on 01.04.2016 recommended for compulsory retirement of the petitioner. The recommendations of Screening Committee are as follows:
Sl. No. I.D. No. Name of the Officer (S/Sri) Recommendations
3. 5789
Ram Murti Yadav, Addl. District & Sessions Judge, Azamgarh.
Earlier the matter of officer was considered in the meeting of Screening Committee held on 22.1.2013 but was deferred for the following reasons :-
"In 1996-97, he had 22.89% out turn with sufficient explanation and he was rated as fair officer but the said adverse remarks was expunged subsequently. In the years 2008-09 to 2010-11 his out turn was marginally low but was found to be satisfactory.
In V.B. Enquiry no.26/09 concerning his passing acquittal order in criminal case no. 4670/2005 State Vs. Mohd. Ayub u/s 467, 468, 471, 474, 420, 406 and 120 I.P.C. P.S. Bhadohi, he has been held guilty and punished with censure. In another V.B. Enquiry no.6/2009 a report dated 10.05.2012 exonerating him has been submitted by O.S.D. (Enquiry) and matter has been dropped vide A.C. Meeting held on 31.05.2012.
In view of above details the Committee resolves to defer his case."
A V.B. enquiry no. 26/2009 was initiated against the officer and the enquiry report was accepted by the Administrative Committee in its meeting held on 27.09.2012 and the officer was punished with the following censure entry:-
"Sri Ram Murti Yadav, the then C.J.M., Bhadohi is inflicted punishment of censure for having acquitted the accused Mohd. Ahub in Criminal Case No. 4670 of 2005 (State Vs. Mohd. Ayub) under Sections 467, 468, 471, 474, 420, 406 and 120-B I.P.C., P.S. Bhadohi, District Sant Ravi Das Nagar, Bhadohi, despite having substantial evidence on record to convict the said accused. Thus, it is clear that despite the fact of no direct proof of taking any illegal gratification or any extraneous consideration but deviation from the logical conclusion on the basis of the evidence on record can well be inferred to be due to some extraneous reasons.
Keeping in view the overall service record of the officer, the Committee recommends that the officer be compulsorily retired.
55. The recommendations of Screening Committee was considered in Full Court Meeting held on 14.04.2016 and the following resolution was passed:
Supplementary Agenda Agenda Resolution
1. Screening of the Judicial Officers under Rule 56(C) of U.P. Fundamental Rules.
Consideration of the minutes dated 1.4.2016 of the Screening Committee comprising Hon'ble Mr. Justice V.K. Shukla, Hon'ble Mr. Justice Sudhir Agarwal and Hon'ble Mr. Justice P.K.S.Baghel in the matter Considered the minutes dated 1 April 2016 of the Screening Committee comprising Hon'ble Mr. Justice V.K. Shukla, Hon'ble Mr. Justice Sudhir Agarwal and Hon'ble Mr. Justice P.K.S.Baghel in the matter.
Resolved that the report/minutes dated 1 April 2016 of the Hon'ble Screening Committee comprising Hon'ble Mr. Justice V.K.Shukla, Hon'ble Mr. Justice Sudhir Agarwal and Hon'ble Mr. Justice P.K.S. Baghel be accepted and the following officers be retired compulsorily under Rule 56(c) of the U.P. Fundamental Rules :
S/Sri
1. xxxx
2. xxxx
3. Shri Ram Murti Yadav, Additional District & Sessions Judge, Azamgarh.
4. xxxxxx .........
Registry to take follow up action
56. On the basis of resolution dated 14.04.2016 State of U.P. passed the impugned order dated 03.05.2016 under Rule 56(c) of the Fundamental Rules regarding compulsory retirement of the petitioner. In view of the detail facts narrated herein above, the resolution dated 14.04.2016 passed by Full Court and the impugned order dated 03.05.2016 passed by Government of U.P. do not suffer from any infirmity regarding decision making process.
57. Here it may be added that during the course of arguments both the parties have relied upon the verdict given in the State of Gujarat Vs. Umedbhai M. Patel (supra). The Division Bench of the Hon'ble Apex Court has summarized the principles of law relating to the compulsory retirement, in which it is held that for better administration, it is necessary to chop off dead-wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. It is further held that any adverse entry made in the confidential record shall be taken note of and be given due weightage in passing such order. Even un-communicated entries in the confidential record can also be taken into consideration. The order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
58. Here, it may be added that Apex Court in Union of India & Ors. vs. A.N. Saxena : 1992 (3) SCC 124 and Union of India & Anr. vs. K.K. Dhawan : 1993 (2) SCC 56 has held that where the judicial officer has conducted in a manner as would reflect on his reputation or integrity or good faith or devotion to duty; and that there is prima-facie material to show recklessness or misconduct in the discharge of his duty; or if he has acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers; or that if he had acted in order to unduly favour a party; and if he had been actuated by corrupt motive, in these circumstances, disciplinary action can be initiated in respect of a judicial or a quasi-judicial action of Judicial Officer.
59. It is pertinent to add that in the case of State of Orissa & Ors. Vs. Ram Chandra Das (supra), three Judges Bench of Hon'ble Apex Court has held that, adverse entries still remained part of the record for overall consideration to retire a government servant compulsorily. The object always is public interest, therefore, such entries do not lose significance, even if the employee has subsequently been promoted. The Hon'ble Apex Court has also held that merely because a promotion has been given even after the adverse entries were made, cannot be a ground for compulsory retirement of the government servant. It is further held that 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. This judgment has been followed in State of Gujarat Vs. Umedbhai M. Patel (supra), emphasizing that the entire record of the government servant is to be examined.
60. In State of U.P. v. Vijay Kumar Jain (supra) the Hon'ble Apex Court has held that vigour or sting of an entry does not get wiped out, particularly, while considering the case of employee for giving him compulsory retirement, as it requires examination of the entire service records, including character rolls and confidential reports. Vigour or sting of an adverse entry is not wiped out merely it relates to the remote past. There may be a single adverse entry of integrity which may be sufficient to compulsorily retire the government servant. The Hon'ble Apex Court has further held that the washed-off theory does not have universal application. It may have relevance while considering the case of government servant for further promotion but not in a case where the employee is being assessed by the Reviewing Authority to determine whether he is fit to be retained in service or requires to be given compulsory retirement, as the Committee is to assess his suitability taking into consideration his entire service record.
61. The same view was taken by the Apex Court in Rajasthan State Road Transport Corporation and others Vs. Babu Lal Jangir (supra), in which the Apex Court clarified and spelled out the circumstances in which the earlier adverse entries/ record would be wiped of and the circumstances in which the said record, even of remote past would not lose its significance.
62. In Pyare Mohan Lal Vs. State of Jharkhand (supra) it was observed that washed-off theory will have no application when the case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. The rationale given is that since such an assessment is based on entire service record, there is no question of not taking into consideration the earlier old adverse entries or record of the old period. It was further reiterated by Hon'ble Apex Court that there can be no iota of doubt that the entire record can be scrutinized by the employer to adjudge the justification of continuance of the employee after reaching a particular age as contemplated in the Regulations.
63. Therefore, the exposition of law relied upon by the learned counsel for petitioner in Registrar, High Court of Madras Vs. R. Rajiah (supra) is of no help for the petitioner on the ground that he was promoted as Additional District Sessions Judge, Fast Track Court and afterwards he was appointed under Rule 22(1) of U.P. Higher Judicial Service Rules, 1975 and as such censure entry recorded against him could not be considered while considering compulsory retirement is fallacious as the Screening Committee and the Full Court are fully capable and entitled to scrutinize the entire service record of the petitioner in this regard.
64. Likewise, the case law, State of Gujarat & another Vs. Suryakant Chunilal Shah (supra) does not extend any benefit to the petitioner because the facts and circumstances of this case are different. There was no adverse entry in the character role about the integrity of the officer. It was found that although there was no adverse entry in the character roll that the respondent's integrity was doubtful, the Review Committee, on its own, probably on the basis of the FIRs lodged against the respondent, formed the opinion that the respondent was a person of doubtful integrity. Whereas in the present case vigilance inquiry was conducted by the O.S.D.(Enquiry), Allahabad High Court and on the basis of inquiry report impugned censure entry was recorded against the petitioner, which relates to his integrity by implication.
65. Learned counsel for petitioner has vehemently argued that on the basis of case law M. S. Bindra Vs. Union of India (supra) that integrity of petitioner was certified by the concerned District Judges, therefore, on the basis of this single so called entry of censure relating to integrity of petitioner cannot be a ground for his compulsory retirement. But as held by Hon'ble Apex Court in State of U.P. v. Vijay Kumar Jain (supra), a single adverse entry of integrity may be sufficient to compulsorily retire the government servant, therefore, there is no substance in the argument of learned counsel for the petitioner in this regard and case laws relied upon by the petitioner are of no avail to him.
66. During the course of arguments, learned counsel for petitioner has also relied upon the case law Madan Mohan Choudhary Vs. State of Bihar (supra), Jatinder Pal Singh Vs. High Court of Punjab & Haryana (supra), P. C. Joshi Vs. State of U.P. & others (supra), Ramesh Chander Singh Vs. High Court of Allahabad & Another (supra) and argued that the High Court, while exercising its power of control over the subordinate judiciary is under a constitutional obligation to guide and protect judicial officers from being harassed or annoyed by trifling complaints relating to judicial orders so that the Officers may discharge their duties honestly independently, unconcerned by the ill-conceived or motivated complaints, made by unscrupulous lawyers and litigants. Sweeping adverse remarks made in the annual confidential report casting doubt on integrity, impartiality and capacity to work cannot be treated as justified more so because the same were primarily based on the complaints.
67. It has been further argued that if the judicial officers are under constant threat of complaints and inquiry on trifling matters, and if the High Court encourages anonymous complaints, no judicial officer would feel secure, and it would be difficult for him to discharge his duties in an honest and independent manner. If the High Court were to initiate disciplinary proceedings based on a judicial order, there should have been strong grounds to suspect officer's bona fides and the order itself should have been actuated by malice, bias or illegality. The higher courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts. While taking disciplinary action based on judicial orders, High Court must take extra care and caution.
68. The facts and circumstances of the present case are different. Here, we have found that after perusing the impugned judgment dated 17.09.2007 passed by the petitioner and the judgment dated 06.02.2009 passed by the First Appellate Court and the statement of P.W.1 recorded during the course of criminal trial and during the course of inquiry O.S.D.(Enquiry), Allahabad High Court in vigilance inquiry (V.B. Enquiry No. 26 of 2009) has submitted a detailed inquiry report dated 10.05.2012. The Inquiry Officer has recorded the finding that the petitioner delivered the impugned judgment and order dated 17.09.2007 for extraneous consideration because he ignored the oral and documentary evidence adduced by the prosecution, which was sufficient for conviction of accused Mohd. Ayub. The judgment and order dated 06.02.2009 delivered by the First Appellate Court substantiate the findings recorded by the Inquiry Officer.
69. Therefore, censure entry recorded in the character roll/ service record of the petitioner is based on material available against him. This censure entry could have been considered by the Screening Committee and Full Court after perusal of entire service record of the petitioner as held by the Hon'ble Apex Court in the above mentioned expositions of law relied upon by the respondent. There is no substance in the argument of the learned counsel for petitioner that by ignoring this censure entry the petitioner was promoted as Additional District & Sessions Judge, Fast Track Court and on permanent post of Additional District Judge.
70. The case laws Lallu Manjhi & another Vs. State of Jharkhand & others (supra), Nand Kumar Verma Vs State of Jharkhand & others (supra) are of no help for the petitioner because the First Appellate Court and the Inquiry Officer has appreciated the evidence of P.W.1/complainant in correct perspective. Moreover, none of the entries have been recorded in character roll of the petitioner in one go.
71. The petitioner has also relied upon on the annual remarks as filed as Annexures-RA-1, RA-2, RA-4 and RA-5 and argued that in the year 1996-97,petitioner was rated by the concerned District Judge as fair officer on the basis of out-turn 22.89% which was expunged.
72. We have perused the expunged portion of the annual remarks of the petitioner and found that rating of the petitioner as fair officer has not been expunged. Likewise, in the year 2008-09, 2009-10, 2010-11, the petitioner was posted as Additional District & Sessions Judge, Fast Track Court No.8, Pratapgarh and his disposal of work prescribed as Additional District Judge, Fast Track Court was found inadequate. Censure entry, recorded against the petitioner and considered by the Screening Committee and Full Court, still has not been expunged. The petitioner has never challenged the said censure entry, therefore, there is no substance in the arguments of the learned counsel for the petitioner that single censure entry relating to integrity could not be considered by the Screening Committee and Full Court. The expositions of law relied upon by the learned counsel for petitioner are of no help for the petitioner. The expositions of law relied upon by the learned counsel for the respondent is squarely applicable to the facts and circumstances of this case.
73. In K.K. Dhawan's case [supra], the Apex Court indicated the basis upon which a disciplinary action can be initiated in respect of a judicial or a quasi- judicial action as follows :
"(i) where the judicial officer has conducted in a manner as would reflect on his reputation or integrity or good faith or devotion to duty;
(ii) that there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) that if he has acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(iv) that if he had acted in order to unduly favour a party;
(v) that if he had been actuated by corrupt motive."
74. Here it is pertinent to add that every judicial officer, a member of this pious institution of justice delivery system, is oblige to maintain and observe absolute integrity, trust of litigants/ public and should conduct within the precinct of Court and off the Court, so that his integrity, reputation and impartiality should reflect. Every judicial officer is expected to live life of a "Hindu Widow". The conduct of the petitioner, while he delivered the impugned judgment dated 17.09.2007, ignoring the material evidence available against the accused, comes into the category of misconduct, which reflects against his integrity.
75. In view of the aforesaid detailed discussion and the legal position, none of the grounds as urged by the petitioner is tenable in the eyes of law and the writ petition lacks merit, which is hereby dismissed.
76. Parties to bear their own costs.
Order Date : 23 May, 2018 Mustaqeem