Rajasthan High Court - Jaipur
Op Sharma vs State And Ors on 6 December, 2013
Author: Ajay Rastogi
Bench: Ajay Rastogi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
J U D G M E N T
D.B. Civil Writ Petition No. 668/2002
OP Sharma Vs. The State of Rajasthan & Anr.
Order reserved on 22.11.2013
Order pronounced on 6.12.2013
HON'BLE MR. JUSTICE AJAY RASTOGI
HON'BLE MR. JUSTICE JK RANKA
Mr. RC Joshi,
Mrs. Namita Parihar, for petitioner.
Mr. NK Maloo, Sr. Adv. with
Mr. Vishnu Sharma,
Mr. VK Tamolia, on behalf of respondent-Raj. High Court.
BY THE COURT(Per Hon'ble Mr. Justice Ajay Rastogi)
By way of instant writ petition, the petitioner has impugned order of the Govt. of Rajasthan dt. 9.11.2000 whereby in pursuance of Rule 53(1) of Raj. Civil Service Pension Rules, 1996 (Rules 1996) he was compulsorily retired on recommendation of the High Court.
The facts that culled out are that the petitioner was initially selected in Rajasthan Judicial Service and appointed as Munsif Cum Judicial Magistrate vide order dt. 29.8.1974. He was promoted to the Higher Judicial Service and posted as Additional District & Sessions Judge vide order dt.16.5.1990 under R.22 of Rajasthan Higher Judicial Service Rules, 1969 (Rules 1969) and was made substantive in the cadre of RHJS vide order dt.25.6.1999.
While the petitioner was working as an officer of Rajasthan Higher Judicial Service, a committee of Honble Judges of this Court was constituted by Honble the Chief Justice vide order dt.22.8.2000 to consider the cases of such of the judicial officers of the State of Rajasthan who have become deadwood or lost it utility for compulsory retirement obviously who qualified pre conditions contemplated under R.53(1) of Rules 1996 and the committee in its meeting held on 28/29th August, 2000 considered the cases of good number of judicial officers including the petitioner and after examining overall record of service including personal and other files of the officer 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 resolved to accept the report of the Committee and recommended petitioners compulsory retirement and consequently vide Govt. Order dt.9.11.2000, the petitioner was compulsorily retired under R.244(2) of RSR (Old)/ 53(1) of Rules 1996.
The main thrust of counsel for the petitioner is that in the ACR of 1991 he was initially assessed as below average officer but on his representation, the word below was deleted but still the Committee considered the ACR of 1991 which was originally indicating his work performance as below average and that has prejudiced the mind of the Committee and further submits that his disposal of work remain good and consistent and in these facts & circumstances the subjective satisfaction of the committee arrived on the basis of service record for compulsory retirement is not based on valid material and such decision of becoming liability to the judicial service have no factual foundation and deserves to be quashed being an arbitrary exercise of power of the authority.
Counsel for petitioner has tried to persuade this Court as regards his doubtful integrity for the year 1982 & 1983 and the material which has been placed on record does not sustain the adverse remark and further grievance is that overall record of the incumbent was to be looked into while taking decision as to whether one has become a dead wood or looses its utility to continue in service but from the minutes of the meeting of the committee constituted by Honble Chief Justice who examined the record of service of the petitioner it appears that it has not looked into the overall record of service and subjective satisfaction which has been arrived based on the partial service record and decision of compulsory retirement of the officer is not legally sustainable & deserves to be quashed.
The respondent filed their reply and while supporting the order impugned submits that the overall record of service was placed before the Committee annexed in the Form Schedule-A and as regards his integrity, it was found to be doubtful in 1982 and against the said remark, representation and review petition both were rejected. In 1983, it was recorded that he was not good officer and his views found to be tainted with communalism and the representation submitted against the said remark was also rejected. Schedule-A relevant for the present purpose reads ad infra-
SCHEDULE-A I. Adverse/Advisory Remarks in ACRs (Communicated or Uncommunicated) 1975- (29.4.1975 to 19.08.1975) Reporting Officer-
2. If he is fair and impartial Requires more in dealing with the public experience and and the Bar ? Stability.
11. General Remarks He shows interest in his work and accepts suggestions but requires maturity.
1978- (Jan.1978 to 19.05.1978) Reporting Officer-
I joined here on 28.8.1978. I endorse the remarks and report of Shri NL Chhangani.
However, I would like to add that Shri OP Sharma is posted in this Judgeship (Churu) since 21.9.74. It would, therefore, be advisable that he is changed now and is transferred from this district. It is said that his wife is an Agent for LIC who, it is alleged, secures insurance cases from sardarsahar area.
1979- (Jan.1979 to May 1979) Reporting Officer -
1. Integrity of the Officer : There were some complaints against him reflecting on his integrity which needed enquiry.
2. If he is fair and impartial : Yes, except complaints in dealing with the public referred to above.
and the Bar ?
11. General Remarks : He is a good judicial officer but his overstay in Churu District brought his reputation down. He made his wife LIC Agent at Sardarsahar, who, it is alleged, procured business in that area.
INTEGRITY CERTIFICATE Nothing has come to my knowledge which casts any reflection on the integrity of Shri OP Sharma, except the complaints referred to above at Item No.1.
His general reputation for honesty is good and I certify his integrity, subject to what I have stated at item no.1.
1982- Reporting Officer - 1. Integrity of the officer : Can't say with certainty. 2. If he is fair and impartial : Can't say with certainty. in dealing with the public and the Bar ? 3. If he is cool minded : Sometime shows temper and does not show temper in Court ? I can't certify his integrity. 1983- (01.01.1983 to 20.04.1983) Reporting Officer- 1. Integrity of the Officer : Not good 2. If he is fair and impartial : No in dealing with the Public and the Bar ? : 3. If he is cool minded : No and does not show temper in Court ? 10. Relation with the Bar : Not so good 11. General Remarks : Just an average officer but I used to hear complaints regarding his behaviour and integrity. INTEGRITY CERTIFICATE
In these circumstances I cannot certify the integrity of Shri OP Sharma (I).
Remarks by Hon'ble Chief Justice-
Not a good officer. Views are tainted with communalism.
1993- Remarks by Hon'ble Inspecting Judge-
Perused some judgments. Facts have been discussed in session cases. He can be said to be some times liberal in his approach. He is doing criminal work only, hence, no occasion to see judgments in civil cases. Bail granted by him in a smuggling case at Jaipur has been canceled by me.
II. Below Standard Judgments-
Year No. of judgments 1978 1. Held guilty u/S.182 IPC only on the opinion evidence of S/O. 1979 1 Cognizances against the complaints taken with any iota evidence 1980 1. - - 1983 4. In 1st case Did not appreciate evidence properly In 2nd case Took cognizance without reason In 3rd case Took cognizance without keeping facts and evidence in views In all the judgment neither lucid to the point four cases nor logical. Discussion of law and evidence not thorough. In 1st & The order is not appropriate 4th cases 1986 2 Decided against the facts and law. 1987 4 Out of 4 cases In 1st The judgment of lower court seems to decide the issue no.2 at two places on page 4, for 1st time and secondly on page 5, after decision of issue no.1, but still failed to decide whether the wall between the house of plaintiff and defendant is a common wall hence the right of preemption applicable or not. That is decision of issue no.5, the cost of improvement by defendant was again decided, although it was already decided on 4.2.82 on a preliminary issue. This shows casual and superficial way of dealing with the case. In 2nd case The case of plaintiff was that defendant made material alteration in the suit premises and sublet it. These facts were directly admitted by defendant. But still suit was dismissed on untenable grounds which were not supported by evidence. The Presiding Officer seemed to be predetermined to dismiss the suit. In 3rd & Evidence misquoted and wrong 4th case conclusion drawn. Evidence mis- interpreted and rules of law wrongly interpreted. III- Enquiries and Complaints.
As many as 32 complaints were received against the petitioner during his entire service tenure, out of which one relating to acting in dishonesty with corrupt motives in deciding bail matters was culminated into an enquiry u/R.16 of CCA Rules but he was exonerated of the charges. One complaint was culminated into an enquiry u/r 17 of CCA Rules, in which he was warned. The petitioner did not prefer any appeal against the warning. Rest of the complaints were filed.
IV- Low Work Disposal The work disposal of the petitioner was less than 100% during following years-
Years Percentage 1977 88% 1999 55% 2000 95% V- Supersessions-
Apart from it petitioner was not granted selection and super time scale of RHJS. His representations in this regard were also rejected by the Hon'ble Full Court in its meeting dt.21.10.1994 and 30.05.1997. However, further pointed out that in the year 1989, an enquiry under R.17 of CCA Rules was initiated in which he was warned and that apart large number of complaints were received against the officer and that was the period while the petitioner was posted as District & Sessions Judge, Pratapgarh.
Counsel for respondent further submits that the Committee examined the overall record of service of the petitioner and after due application of mind and taking note of other files arrived at the conclusion that the officer proved to be a liability in the judicial service and the public interest warrant compulsory retirement and that was examined by the Full Court and after acceptance of the committees report, order was passed by the State Govt. under R.53(1) of Rules 1996 of his compulsory retirement.
Counsel further submits that the order of compulsory retirement is not a punishment and implies no stigma nor any suggestion of misbehaviour and principles of natural justice have no place in the context of order of compulsory retirement and scope of judicial review/scrutiny of order of compulsory retirement is permissible only if order is arbitrary or malafide or is based on no evidence which the petitioner has not been able to make out and in absence whereof the order of compulsory retirement impugned in the instant petition based on subjective satisfaction does not require interference.
We have considered the submissions made by the parties and with their assistance examined the material on record.
At the very outset, we would like to quote section 53(1) Rules 1996 under which the petitioner has been compulsorily retired and extract of the rule which is relevant for the purpose reads 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 Department. In case of such retirement, the Government servant shall be entitled to retiring pension.
It would be seen from R.53(1) which gives right to the competent authority to retire any government servant who have completed 15 years of 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 the public interest to pre mature retire government servant from service.
Before adverting to the question whether the compulsorily retirement order suffers from any legal infirmity, we would consider it appropriate to refer to the report of the Committee constituted of three Hon'ble Judges who examined overall service record of the petitioner in its meeting held on 28/29th August, 2000. The report reads ad-infra:
Shri OP Sharma was born on 5.7.1949 and he joined the judicial service on 29.8.1974.
His integrity was found doubtful in 1982 and against the said adverse entry, his representation and review petition both were rejected. In 1983, he was assessed as not a good officer. His views were found to be tainted with communalism. His representation against the said adverse entry stood rejected. In 1991, he was assessed as below average officer and his representation against the said adverse entry was rejected. Again in 1993, adverse entry was recorded against him and the same was communicated. No scale was granted to him.
In 1989, in an enquiry under R.17 of the CCA Rules, he was warned.
Besides, a large number of complaints have been received against the officer recently which are under process in respect of his work, while he was posted as Special Judge, NDPS Act Cases, Pratapgarh.
In view of overall assessment of his service records, including personal or 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 committee recommends accordingly. It is further recommended that the officer may be given bank draft of the amount equivalent to three months' pay and allowances in lieu of the notice period along with the order of compulsory retirement.
The Committee also recommends that the enquiry, if any, initiated against the officer either under R.16 or 17 of the CCA Rules may be dropped.
The Committee recommends accordingly. It is further recommended that the officer may be given bank draft of the amount equivalent to three months' pay and allowances in lieu of the notice period along with the order of compulsory retirement.
The Committee also recommends that the enquiry, if any, initiated against the officer either under R.16 or 17 of the CCA Rules may be dropped.
It is indeed settled that the order of compulsory retirement is not punishment, it implies no stigma nor any suggestion of misbehaviour and is based on subjective satisfaction of the authority and this principle has been consistently followed by Apex Court that the authority is under obligation to consider the entire record of service before taking a decision of compulsory retirement of course attaching more importance of service record of later 5-10 years but it goes without saying that as regards the honesty and integrity of officer is concerned, even a solitary instance could be considered to be a sufficient and there cannot be any compromise as regard honesty and integrity of a judicial officer. The principles which emerge and laid down for consideration for testing the validity of order of compulsory retirement have been considered in the case of Baikuntha Nath Das and Anr. V. Chief District Medical Officer, Baripada and Anr. AIR 1992 SC 1020 has laid down certain guiding principles for the Courts, on which it can interfere in the order of compulsory retirement and that include mala fides, 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 Court held as under:
(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 view has been reiterated by the Apex Court in Posts and Telegraphs Board and ors. V. C.S.N. Murthy (AIR 1992 SC 1368) and 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.
And taking note of latter decision of the Apex Court, three Judges Bench of Apex Court in AIR 2010 SC 3753 in Pyare Mohan Lal Vs. State of Jharkhand And Ors. 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 which reads 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, the nature of judicial service of persons doubtful integrity or persons 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 saids 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, in that it is not a form of punishment prescribed by the rules and involves no penal consequences, inasmuch as the person retired is entitled to pension and other retiral benefits, proportionate to the period of service standing to his credit.
It is also settled by the consistent view of the Apex Court that the order of compulsory retirement does not have adverse consequence and, therefore, the principles of natural justice has no role to play and uncommunicated ACR on record can be taken into consideration and an order of compulsory retirement cannot be set aside for the reason that such un-communicated entries was taken into consideration. The incumbent has not been afforded an opportunity to represent before the same was taken into consideration for passing the order of compulsory retirement, cannot vitiate the order of compulsory retirement. However, the authority has to take into consideration the entire service record of the officer concerned but more attention to the later 5-10 years of record which would include non-communicated adverse remarks also.
Similar view has been taken by the Apex Court in Rajendra Singh Verma (Dead) through LRs. And Others Vs. Lieutenant Governor (NCT of Delhi) And Others (2011) 10 Supreme Court Cases 1 which reads ad-infra:
It is well settled by a catena of decisions of this Court that while considering the case of an officer as to whether he should be continued in service or compulsorily retired, his entire service record up to that date on which consideration is made has to be taken into account. What weight should be attached to earlier entries as compared to recent entries is a matter of evaluation, but there is no manner of doubt that consideration has to be of the entire service record. The fact that an officer, after an earlier adverse entry, was promoted does not wipe out earlier adverse entry at all. It would be wrong to contend that merely for the reason that after an earlier adverse entry an officer was promoted that by itself would preclude the authority from considering the earlier adverse entry. When the law says that the entire service record has to be taken into consideration, the earlier adverse entry, which forms a part of the service record, would also be relevant irrespective of the fact whether the officer concerned was promoted to higher position or whether he was granted certain benefits like increments etc. Instant case has to be examined in the light of aforesaid decisions.
In the instant case, the respondent have placed on record the complete record of service of the officer in Form Schedule-A which gives the adverse/advisory remarks.
The record of service was considered by the committee constituted by Honble the Chief Justice vide order dt.22.8.2000 and while examining overall record of service took note of his integrity as doubtful in 1982 and for year 1983 where he was assessed not good officer and views the officer was found to be tainted with communalism and in 1991 he was found below average officer, however the word 'below' was deleted on his representation. In 1993 there was adverse entry and no scale was granted to him and it has also come on record that there are large number of complaints received against the officer recently of the place where he was posted as Special Judge, NDPS Act, Pratapgarh.
Upon careful consideration of the record pertaining to the decision of the committee, approved by the Full Court and upon consideration of entries recorded in the confidential report etc. we are in complete agreement with the view taken by the Committee and endorsed by the Full Court and the order of compulsorily retirement dt.9.11.2000 (Ann.6) is in public interest and does not require interference.
As regard the submission made that the word below in the ACR of year 1991 was deleted and still that has been taken note of by the committee in its report, in our considered view even if the word 'below' stands deleted that may not strengthen the case of the petitioner as long as remark of integrity remains as part of the record and it has not materially affected the decision of the committee and approved by the Full Court of his compulsory retirement and further submission made by the petitioner assailing the adverse remark recorded in ACR of 1982 and 1983 has no substance for the reason that once the petitioner submitted representation thereafter review petition and both were rejected by the competent authority and the remark attained finality at least is not open for this Court to review and examine its validity and open for scrutiny of the remark at the stage when the order of compulsory retirement is impugned in the instant proceedings.
In the instant case, the committee duly constituted by Hon'ble the Chief Justice of High Court to examine the entire service record and report of the committee was placed before the Full court and the Full Court took decision unanimously after due deliberation and there hardly remains any chance of allegation of non application of mind and no where it has been alleged malafide in the process which was adopted by the High Court in taking decision in regard to compulsory retirement of the officer.
Consequently, in our view, on the material which has come on record, we do not find any error being committed by the respondent in taking impugned decision of compulsory retirement of the petitioner which is based on record of service and further no stigma has been attached to the order impugned.
In view of the above discussion, we do not find any cogent reason to interfere in the matter and the petition lacks merit and accordingly stands dismissed. No cost.
(JK Ranka), J. (Ajay Rastogi), J.
"All corrections made in the judgment/order have been incorporated in the judgment/order being emailed"
Datar Singh P.S.