Rajasthan High Court - Jaipur
Sunder Lal vs State Of Raj & Anr on 31 August, 2016
Author: Ajay Rastogi
Bench: Ajay Rastogi
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D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005
Sunder Lal. VS. State of Rajasthan & Others.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH, JAIPUR
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D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005
Petitioner:
Sunder Lal S/o Shri Lahari Ram, age about 53 years, R/o 39,
Govind Vatika, Delhi Bye Pass Road, Jaipur.
VERSUS
Respondents:
1. State of Rajasthan through the Secretary, Department of
Law, Secretariat, Jaipur.
2. The High Court of Judicature for Rajasthan, Jodhpur
through its Registrar General.
Judgement reserved on : 23rd August, 2016
Date of Judgement : 31st August, 2016.
HON'BLE MR.AJAY RASTOGI,J.
HON'BLE MR.JAINENDRA KUMAR RANKA,J.
Mr.HIMMAT SINGH, Counsel for petitioner.
Mr.R.K.AGARWAL, Senior Counsel assisted by
Mr.RISHIPAL AGARWAL, Addl.Govt.Counsel for respondent No.1.
Mr.MAMOOL KHALID, Counsel for respondent No.2.
JUDGEMENT
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BY THE COURT (Per Hon'ble Mr.Justice Ajay Rastogi):
By the present writ petition, the petitioner has challenged the order of compulsory retirement dt.13.07.2004 u/R.53(1) of the Rajasthan Civil Service Pension Rules, 1996 (in short 'the Rules of 1996') passed on recommendations of the High Court.
The brief facts of the case, which are relevant for the present purpose, are that the petitioner became member of Rajasthan Judicial Service in the year 1985 after being selected by the Rajasthan Public Service Commission through a -2- D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005 Sunder Lal. VS. State of Rajasthan & Others. competitive examination and posted as Munsif & Judicial Magistrate, Nohar, District Ganganagar, where he joined on 22.08.1985 and on completion of his period of probation of two years, he was confirmed vide order dt.21.11.1987 and was further promoted on the post of Chief Judicial Magistrate in June, 1999 and was granted selection grade in the RJS Cadre in 2001 and because of his adverse service record, he was not found fit for promotion in RHJS Cadre and his case was deferred and his batch-mates were promoted as Additional District Judge.
While the Officer was working as Chief Judicial Magistrate, Hon'ble the Chief Justice vide order dt.19.09.2003 constituted a Committee of five Hon'ble Judges of this Court to scrutinize the cases of such of the Judicial Officers who have become deadwood or lost utility to continue in service for compulsory retirement in public interest obviously who qualified pre-conditions envisage u/R.53(1) of the Rules, 1996. The Committee, constituted under orders of Hon'ble the Chief Justice, in its meeting held on 24.06.2004 considered the cases of Judicial Officers including the petitioner and after examining the overall record of service including personal and other files of Officers, arrived at the conclusion that the petitioner became liability to the Judicial Service and public interest warrants compulsory retirement of the Officer and accordingly recommended for his compulsory retirement which was placed before the Full Court and after due deliberation and discussions and perusing the overall service record & ACRs, it was unanimously resolved by the Full Court in its meeting dt.09.07.2004 to accept the report of the Committee -3- D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005 Sunder Lal. VS. State of Rajasthan & Others. & recommended petitioner's compulsory retirement and in consequence thereof vide order dt.13.07.2004 the petitioner was compulsorily retired u/R.53(1) of the Rules, 1996.
Counsel submits that there was no material available on record on the basis of which even a man of ordinary prudence would arrive to a conclusion that the petitioner has become a deadwood or liability to the Judicial Service or lost his utility to continue in service and in public interest should be compulsorily retired.
According to the counsel, the respondents have arbitrarily exercised their power u/R.53(1) of the Rules, 1996 to retire him compulsorily, as alleged, in public interest and since the order communicated to him impugned herein dt.13.07.2004 is completely innocuous and when the matter has come for judicial review, it is the bounden duty of the respondents to place the material on record to justify their action and from the record of service which has been referred to by the respondents in their reply and considered by the Committee constituted by Hon'ble the Chief Justice, if examined in totality, the recommendation of the Committee, approved by the Full Court, in taking a decision of his compulsory retirement in public interest is not legally sustainable on the parameters laid down by the Apex Court in series of judgements and it requires interference of this court.
Counsel for petitioner has further tried to persuade this court that the material which has been placed on record does not sustain the adverse remarks and overall record of the officer was to be looked into while taking a decision and arriving to the -4- D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005 Sunder Lal. VS. State of Rajasthan & Others. conclusion that the Officer has either become deadwood or looses its utility to continue in service and it appears that the Committee constituted by Hon'ble the Chief Justice has failed to examine the complete record of service of the petitioner and the subjective satisfaction which has been arrived at based on the service record and decision of compulsory retirement of the officer under order impugned is not sustainable and deserves to be quashed.
The respondents have filed their reply and while supporting the order impugned submitted that the total record of service including personal & other files of the petitioner were examined by the Committee constituted by Hon'ble the Chief Justice and on the recommendation of the Committee dt.24.06.2004 holding that the Officer has proved himself to be a liability to the Judicial service and in the public interest he may be compulsorily retired was placed before the Full Court and the Full Court in its meeting dt.09.07.2004, after scrutinizing the entire service record and other files of the officer, was unanimous & of the view that recommendation of the Committee constituted by Hon'ble the Chief Justice deserves acceptance and it will be in public interest to compulsory retire the petitioner and consequently vide Government order dt.13.07.2004, the petitioner was compulsorily retired u/R.53(1) of the Rules, 1996.
We have considered the submissions made by counsel for the parties and with their assistance examined the material on record.
At the very outset, we would like to quote R.53(1) of the -5- D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005 Sunder Lal. VS. State of Rajasthan & Others. Rules, 1996 under which the petitioner has been compulsorily retired and extract of the Rule, which is relevant for the present purpose, read ad infra:-
"At any time, after a government servant has completed 15 years qualifying service or has attained the age of 50 years, whichever is earlier, the appointing authority, upon having been satisfied that the concerned government servant has on account of his indolence or doubtful integrity or incompetence to discharge official duties or inefficiency in due performance of official duties, has lost his utility, may require the concerned government servant to retire in public interest after following the procedure laid down by the Government in Department of Personnel/Administrative Reforms Development. In case of such retirement, the government servant shall be entitled to retiring pension."
If we see R.53(1) of the Rules, 1996, it gives right to the competent authority to retire any government servant who has completed 15 years qualifying service or has attained the age of 50 years, whichever is earlier, after recording subjective satisfaction of the authority forming opinion that it is in public interest to retire the government servant prematurely from service.
Adverting to the question whether the order of compulsory retirement dt.13.07.2004 suffers from any legal infirmity, we would consider it appropriate to refer to the report of the Committee constituted of five Hon'ble Judges who examined the overall service record of the petitioner in its meeting held on 24.06.2004. The Committee in its report dt.24.06.2004 observed ad infra:-
"SHRI SUNDER LAL:
He was born on 01.06.1951. He joined Rajasthan Judicial Service on 22.08.1985. Presently he is working in the cadre of Chief Judicial Magistrate, Chittorgarh.
In the year 1987-I the District Judge gave remarks as under:--6-
D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005 Sunder Lal. VS. State of Rajasthan & Others.
"Integrity- Highly doubtful. I cannot vouch safe his integrity. The occasions have reflected otherwise. Carries bad reputation about his integrity. Integrity certificate (for the period from 1.1.87 to 19.8.87) withheld. He is not fair and impartial in dealing with the public and the Bar. He is not cool-minded and shows temper in Court. On occasions shows temper and also tries to deceit the senior and brother Officers. He is in habit of taking alcohol even with the private persons. Control over the office and administrative capacity and tact - poor. The Officer is not good.
Does not behave according to his status and position. Moves with the persons of bad taste character".
The adverse remarks were communicated to him. His representation was received which was considered and rejected vide letter dated 3.06.93.
In the year 1990-I and 1990-II the District Judge gave remarks as under:-
"He was not enjoying good reputation. He is an average Officer".
"He needs improvement in writing down well reasoned and good judgements. He is an average Officer".
The Hon'ble Inspecting Judge rated him as "Not even average". The Hon'ble Chief Justice also rated him as below average Officer.
The adverse remarks were communicated to him. His representation was received which was considered and rejected vide letter dated 07.05.93 D.B.Civil Writ Petition No.3889/1994 against adverse remarks has also been dismissed on 18.01.1995.
In the year 1993 the District Judge gave following remarks which were agreed by the Hon'ble Inspecting Judge:-
"Control over the office and administrative capacity and tact is poor. Capacity to control the proceedings in Court with firmness and follow the procedure prescribed by law is poor. He has no full control over his staff. He needs improvements".
The adverse remarks were communicated to him. His representation was received which was considered and the adverse remarks were treated to be as advisory vide letter dated 08.06.99.
In the year 1996-II the District Judge gave remarks as under:-
"Average. Though there are complaints regarding his integrity yet it may not be fair to withhold his integrity certificate as nothing has been proved or found against him so far".-7-
D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005 Sunder Lal. VS. State of Rajasthan & Others. The adverse remarks regarding inadequate quota for the year 1996 were communicated to him. His representation was received which was considered and the adverse remarks have been expugned vide letter dated 04.06.99.
In the year 2001 the District Judge gave remarks as under:-
"He is not an honest Officer. Below average. He is not fair and impartial in dealing with the public and the Bar. Capacity to handle files systematically is below average. Judgements on fact and law are not on the whole, sound not well reasoned and not expressed in good language. Control over the office and administrative capacity and tact- below average. Capacity to control proceedings in Court with firmness and follow the procedure prescribed by law - below average. Integrity certificate withheld".
The Hon'ble Inspecting Judge and the Hon'ble Administrative Judge rated him as below average officer. The adverse remarks were communicated and the representation made against it is still pending.
One D.E. Under Rule 16 of CCA Rules (file No.Estt.B2(iii)3/2003) is pending with Hon'ble Mr.Justice A.C.Goyal.
In D.E. Under Rule 17 of CCA Rules (file No.R/VIG/60/2002) he was issued a warning vide letter dated 22.06.2002.
In P.E. Nos.R/V/148/89 and R/V/84/2002 he was issued warning. 17 complaints against the Officer were received which have been filed.
In view of above remarks he was not found fit for promotion in RHJS cadre vide Full Court Circulation Case No.3/2003 and his case was deferred. His batch-mates have been promoted as ADJ.
In view of over-all assessment of his service record, including personal and other files, the officer has proved to be a liability to the Judicial Services and public interest warrants compulsory retirement of the aforesaid Officer immediately. The inquiries, if any, pending against him under rule 17 and 16 of the CCA Rules are also required to be dropped. It is further recommended that the Officer may be given Bank Draft of the amount equivalent to three months pay and allowance in lieu of notice period, alongwith the order of the retirement." It is indeed settled by this time that the order of -8- D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005 Sunder Lal. VS. State of Rajasthan & Others. compulsory retirement is not a punishment, it implies no stigma nor any suggestion of misbehavior and is based on subjective satisfaction of the authority and this principle has been consistently followed by the Apex Court that while considering the case of an Officer as to whether he should be continued in service or compulsorily retired, his entire record of service upto that date on which consideration is made has to be taken into account while taking decision of compulsory retirement, of course, attaching more importance of service record of last 5-10 years but the evaluation has to be made on the basis of entire service record and even if one has been promoted that will not wipe out the earlier adverse entry, if any, and even one solitary adverse entry in the record of service regarding honesty & integrity would be considered to be sufficient in taking a decision of compulsory retirement.
More so, in Judicial service which cannot be considered to be a service in the sense of employment and the Judicial Officers discharge their functions while exercising the sovereign judicial power of the State. There is no manner of doubt that the nature of Judicial service is such which cannot afford to suffer continuance in service of persons of doubtful integrity or those who have lost their utility & integrity. The honesty and integrity of an Officer is always expected to be beyond doubt, should also be reflected in his overall reputation. In the case of Baikuntha Nath Das & Anr. Vs. Chief District Medical Officer, Baripada & Anr. reported in AIR 1992 SC 1020 the Apex Court has laid down certain guidelines & the scope of judicial -9- D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005 Sunder Lal. VS. State of Rajasthan & Others. review to be kept in mind by the courts while examining the order of compulsory retirement and that include malafides, even if the order is based on no evidence or if the order is arbitrary in the sense that no reasonable person with ordinary prudence would form the requisite opinion on the given material, if it is found to be a perverse order. The Apex Court, thus, held ad infra:-
"(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior.
(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or the Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary- in the sense that no reasonable person would form the requisite opinion on the given material: in short, if it is found to be a perverse order.
(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter- of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks loose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference".
Similar is the view which was further reiterated by the Apex Court in the case of Posts & Telegraphs Board and Ors. Vs. C.S.N.Murthy reported in AIR 1992 SC 1368 wherein the Apex Court has observed ad infra:-
"There was a very limited scope of judicial review in a case of compulsory retirement and it was permissible only on the grounds of non-application of mind; mala fides; or want of material particulars. Power to retire compulsorily a Government servant in terms of Service Rules is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest".-10-
D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005 Sunder Lal. VS. State of Rajasthan & Others. Taking note of later decision of the Apex Court, three Judges Bench of Apex Court in Pyare Mohan Lal Vs. State of Jharkhand and Ors. reported in AIR 2010 SC 3753 observed ad infra:-
"Thus, the law on the point can be summarized to the effect that an order of compulsory retirement is not a punishment and it does not imply stigma unless such order is passed to impose a punishment for a proved misconduct, as prescribed in the Statutory Rules".
The above settled principles as regards judicial service came to be examined by the Apex Court in Nawal Singh Vs. State of U.P. and Anr. reported in (2003) 8 SCC 117, wherein the Apex Court observed ad infra-
"The judicial service is not a service in the sense of an employment. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, the Supreme Court would not interfere with the same, particularly because the order of compulsory retirement is based on the subjective satisfaction of the authority. The present appeals are required to be decided on the basis of the said principles".
This fact cannot be ruled out that judicial service is not a service in the sense of employment and as is commonly understood Judges are discharging their functions exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. There is no manner of doubt that the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility.
Compulsory retirement is neither dismissal nor removal and differs from both of them and it is not a form of punishment -11- D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005 Sunder Lal. VS. State of Rajasthan & Others. prescribed by the rules and involves no penal consequences, inasmuch as the person retired is entitled to pension and other retiral benefits, proportionate to the period of service standing to his credit.
It is also settled by the consistent view of the Apex Court that the order of compulsory retirement does not have adverse consequence and, therefore, the principles of natural justice has no role to play and even uncommunicated ACR(s) on record can be taken into consideration and an order of compulsory retirement cannot be set aside for the reason that such uncommunicated entries were taken into consideration or the officer has not been afforded an opportunity to represent before such uncommunicated entries were taken into consideration for passing the order of compulsory retirement, cannot vitiate the order of compulsory retirement.
At the same time, the authority has to take into consideration the entire service record of the officer concerned but more attention is to be paid to the last 5-10 years of service record which would include uncommunicated adverse remarks also.
Similar view has been taken by the Apex Court in Rajendra Singh Verma (Dead) through LRs. & Others Vs. Lieutenant Governor (NCT of Delhi) & Others reported in (2011) 10 SCC 1 which reads ad-infra:
"It is well settled by a catena of decisions of this Court that while considering the case of an officer as to whether he should be continued in service or compulsorily retired, his entire service record up to that date on which consideration is made has to be taken into account. What weight should be attached to earlier entries as compared to recent entries is a matter -12- D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005 Sunder Lal. VS. State of Rajasthan & Others.
of evaluation, but there is no manner of doubt that consideration has to be of the entire service record. The fact that an officer, after an earlier adverse entry, was promoted does not wipe out earlier adverse entry at all. It would be wrong to contend that merely for the reason that after an earlier adverse entry an officer was promoted that by itself would preclude the authority from considering the earlier adverse entry. When the law says that the entire service record has to be taken into consideration, the earlier adverse entry, which forms a part of the service record, would also be relevant irrespective of the fact whether the officer concerned was promoted to higher position or whether he was granted certain benefits like increments etc."
It has been further considered by the Apex Court in R.C.Chandel Vs. High Court of M.P. & Anr. reported in (2012) 8 SCC 58 wherein the Apex Court at para-29 has observed ad infra:-
"29. Judicial service is not an ordinary government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with higher moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar's wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty."
After taking note of the principles laid down by the Apex Court, what emerges is that the formation of opinion for compulsory retirement is based on subjective satisfaction of the authority concerned but at the same time when the matter comes for judicial review, courts can certainly look into as to whether valid material exists or not, or whether the order of compulsory retirement is based on some material or not but sufficiency of material cannot be a ground for setting aside the -13- D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005 Sunder Lal. VS. State of Rajasthan & Others. order of compulsory retirement.
In the instant case, respondents have placed on record the complete service record of the officer which was examined by the Committee constituted by Hon'ble the Chief Justice in its meeting dt.24.06.2004 and after evaluation, arrived to the conclusion that the Officer has proved himself to be a liability upon the judicial service and recommended to compulsory retire him in public interest and such recommendation of the Committee was placed before the Full Court and the Full Court took a unanimous decision after due deliberation and there hardly remains any chance of allegation of non-application of mind and there appears no malafide committed in the process which was adopted by the respondents in taking decision in regard to compulsorily retire the Officer and that apart in the report, the Committee took a serious note of the kind of complaint, of which a detailed reference has been made and on overall assessment of the service record including personal & other files of the Officer, finally recommended that the Officer has become a liability upon the judicial service and in the public interest he may be compulsorily retired.
After examining overall material which has come on record, we do not find any error being committed by the respondents in taking the impugned decision of compulsory retirement of the petitioner which is based on record of service and further no stigma is attached to the order impugned.
In view of the above discussion, we do not find any reason to interfere in the matter and the writ petition lacks -14- D.B.CIVIL WRIT PETITION (CW) No. 63 of 2005 Sunder Lal. VS. State of Rajasthan & Others. merit, accordingly stands dismissed. No costs. (JAINENDRA KUMAR RANKA ),J. (AJAY RASTOGI),J. Solanki DS, P.S.