Rajasthan High Court - Jodhpur
Brijesh Purohit vs The High Court Of Judicature For Raj on 27 October, 2017
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No.3932/2012
Brijesh Purohit S/o Late Sh. S.R. Purohit, aged about 54 years,
resident of Chandra Niwas, Hakam Bagh, Opp. Sr. Secondary
Sardar School, Jalorie Gate, Jodhpur
----petitioner
Versus
The High Court of Judicature for Rajasthan at Jodhpur, through its
Registrar General
----Respondent
_____________________________________________________
For petitioner (s) : Mr. Brijesh Purohit (Self)
For Respondent(s) : Mr. Manoj Bhandari
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment
Per Hon'ble Mr. Justice Gopal Krishan Vyas
DATE OF JUDGMENT :: 27th Oct., 2017
In this writ petition filed under Article 226 of the Constitution
of India, the petitioner has prayed for the following reliefs, which
read as under:
"It is, therefore most humbly and respectfully prayed
that by an appropriate writ, order or direction your
lordship may kindly be pleased to accept and allow
this writ petition:-
a) Call from the office of the Registry, the ACR
dossier, Service Book, Personal file, quarterly
Work Statements and other Service record of the
petitioner for the kind perusal of this Hon'ble
Court.
As also the ACRs (2003 and 2004) and
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representations and First review petitions of Shri
Atul Kumar Saxena RHJS pertaining to expunge
downgrading adverse remarks in the ACRs of the
years 2003 and 2004 respectively.
b) By an appropriate writ, order or direction, the
downgrading remarks about the integrity and
efficiency in the ACRs of the year 2003 (Part-1
and Part-2) and of the year 2004 (Part-2) of your
humble petitioner may be expunged in the light of
above mentioned facts and established law in this
regard.
c) Cost of litigation may also kindly be awarded to
the humble petitioner.
Any other appropriate order or relief which this
Hon'ble Court may deem just and proper in the
facts and circumstances of this case may kindly
be also passed in favour of the humble
petitioner."
As per facts, the petitioner while practicing as an advocate,
selected in Rajasthan Judicial Services in the year 1992 as per
rules. In the year 2002, he was granted selection grade and
posted as Chief Judicial Magistrate. According to the petitioner,
in his whole service tenure of 18 years, his services remained
unblotted and unblemished. No serious complaints or any
imputation or charge, or notice was issued to him by his superiors
and supervising authority against his integrity, character, conduct,
devotion towards duty and efficiency, his integrity and efficiency
found to be good in all respects. It is also stated in the writ
petition that number of judges of the Hon'ble High Court supervise
and kept watch upon the performance of the petitioner from
close quarters and nothing was found to be bad to withhold the
integrity certificate and always commended his work and integrity
in the annual confidential and inspection reports. According to the
petitioner, his work efficiency was consistently maintained at the
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level of "very good" or "good" in his entire service career. Even no
minor penalty was inflicted upon him and no adverse remarks
were made by the concerned District Judges and Hon'ble
Inspecting Judges of this Court. It is contended that ACRs of the
Part-1 of the year 2003 and Part-2 of the year 2003 as also Part-
2 of the year 2004 were reported by the concerned District
Judges to be "good", "average" and "good" respectively and
integrity certificates were also granted to him, but reviewing and
accepting authority without any serious complaint or adverse
material against him, downgraded the performance of the
petitioner arbitrarily and in perverse manner.
The petitioner present in person invited our attention
towards the fact that Hon'ble Mr. Justice Y.R. Meena (Retd.) was
the accepting authority as Acting Chief Justice and Administrative
Judge in the year 2003-04, and due to illegal advise by the office
of the Registry, downgraded ACRS of approximately 150 judicial
officers of all the ranks and entered the same stereotyped adverse
remarks in the ACRs of the years 2003 and 2004 against the
integrity of these officers without any justification or reason.
The adverse remarks of all the officers were eventually
expunged by the Hon'ble Rajasthan High Court during the tenure
of Acting Chief Justice late Sh. Rajesh Balia upon the
representations of the officers or on first review petition submitted
by the officers. According to the petitioner, the best examples are
of Sh. Atul Saxena, RHJS, Shri Suresh Prakash, RJS and Sh.
Vishnu Dutt Sharma-II, RHJS. It is also pleaded in the writ
petition that reviewing committing under the Chairmanship of
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Hon'ble Mr. Justice Rajesh Balia chose this course feasible to put
the review petitions dated 23.4.2007 of the petitioner in sealed
cover and after 3 months of the petitioner‟s forced premature
retirement, in public interest, which was solely based upon the
above downgrading remarks, rejected and informed by the
Registrar General, Rajasthan High Court, Jodhpur vide letter
No.PA/RG/6(45)/2006/363 dated 5.7.2010 that your review
petition regarding confidential report has been rejected, as not
maintainable. The instant writ petition has been filed by the
petitioner against remarks in the ACRs of the year 2003 (Part-1
and Part-2) and of the year 2004 (Part-2) on various grounds.
The petitioner present in person argued that the District
Judge concerned issued integrity certificates in the years 2003 and
2004 respectively, but without any reason/justification, the
remarks are downgraded by the then Administrative Judge and
Acting Chief Justice Hon'ble Mr. Justice Y.R. Meena (Retd.) upon ill
advise of the officers of the Registry and entered the same
stereotyped adverse remarks in the ACRs of the years 2003 (Part-
1 and Part-2) and IInd part of the year 2004 against the integrity
of the petitioner alongwith 150 efficient, honest and good
subordinate officers, but in the year 2008 Hon'ble Active Chief
Justice Sh. Rajesh Balia considered the review petitions for
redressal of grievances of the judicial officers and constituted a
review committee of the judges comprising of Hon'ble Mr. Justice
Rajesh Balia himself and Hon'ble Mr. Justice K.K. Acharya to
reconsider the downgrading remarks of number of judicial officers
for the year 2003-04 on the basis of their representations or their
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first review petitions. The petitioner also submitted first review
petition alongwith similarly placed judicial officers viz., Sh. Atul
Saxena, RHJS, Shri Suresh Prakash, RJS and Sh. Vishnu Dutt
Sharma-II, RHJS, but the committee did not decide the
representation and keep the same in the sealed cover, which
remained in sealed cover till his compulsory retirement.
The petitioner present in person submits that on 5.7.2010
the Registrar General, Rajasthan High Court sent a communication
to the petitioner after lapse of 3 months from the date of
compulsory retirement in the discriminatory manner that the
review petition regarding ACRs of the year 2004 has been rejected
as not maintainable. In other words, the Registrar General had a
discrimination vis-à-vis to the other similarly situated judicial
officers as mentioned above and absolutely refused to consider
the first review petition dated 23.7.2007.
The petitioner present in person submits that despite of
consistent unimpeachable certification of integrity by the
concerned District Judges and Hon'ble Inspecting Judges in the
entire service career, two adverse remarks were communicated
vide communications dated 10.12.2005. The communication
dated 10.12.2012 (Annex.2) is with respect to the annual
confidential report for the year 2003 (Jan., 2003 to 16.5.2003)
whereby the adverse remarks "integrity is highly doubtful" was
communicated and the other communication dated 10.12.2015
(Annex.3) is with respect to the annual confidential report for the
year 2003 (17.5.2003 to 31.12.2002) wherein as well, the
adverse remarks "Integrity is not beyond doubt. Average officer"
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was communicated to him. The adverse remarks "integrity is not
beyond doubt. Average Officer" for the ACR of the year 2004
(Part-2) was communicated vide a letter dated 15.2.2006.
According to the petitioner, the representations dated 30.1.2006
and 27.2.2006 were filed by the petitioner against those adverse
remarks and information was given to the petitioner on 19.8.2006
vide Annexs.4 and 5. According to the petitioner the then Hon'ble
Acting Chief Justice as accepting authority downgraded the ACRs
of approximately 150 judicial officers in total of all the ranks and
entered the stereotyped adverse remarks against integrity of
those officers without any justification, but those adverse remarks
of all the officers were eventually expunged by the High Court
administration during the tenure of the then Acting Chief Justice
Hon'ble Mr. Justice Rajesh Balia on the basis of representations
and first review petitions sent by the judicial officers. In support
of above contention, it is submitted that best examples are of Sh.
Atul Saxena, RHJS, Shri Suresh Prakash, RJS and Sh. Vishnu Dutt
Sharma-II, RHJS, but the review petitions filed by the petitioner
against rejection of his representation were put in sealed cover by
the review committee. According to the petitioner those review
petitions were kept in sealed cover till passing of the compulsory
retirement order against him and after passing the compulsory
retirement order, the Registrar General of Rajasthan High Court
sent communication dated 5.7.2010 (Annex.2) informing that the
second representation/review petition has been rejected as not
maintainable, but it is very strange that first review petition filed
by other similarly situated officers like Sh. Atul Saxena, RHJS,
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Shri Suresh Prakash, RJS and Sh. Vishnu Dutt Sharma-II, RHJS
were treated to be maintainable and decided by the administration
in their favour. Therefore, submitted that clear cut discrimination
is practiced by the High Court administration. The petitioner
present in person vehemently argued that contention of the
petitioner for downgrading the ACRs of 100s of officers is accepted
in para no.6 of the reply and it is contended by the respondent
that :
"adverse remarks and the ACR of various officers with
regard to their integrity and other factors have been
considered by the Hon'ble High Court on the basis of the
facts and circumstances of each and every case. Therefore,
there is no nexus in expunging the adverse remarks in the
ACR of other officers with that of the petitioner as the
adverse remarks in the petitioner‟s ACR have been examined
by the competent authority in the light of the contents of the
representations submitted by the petitioner."
It is also admitted by the High Court in the reply that review
petition filed by the petitioner on 23.4.2007 was kept in sealed
cover because inquiry in relation to such remarks was pending
and after compulsory retirement, the review petition was
dismissed as not maintainable. The petitioner argued that above
facts loudly speaks that High Court Administration violated the
Article 14 of the Constitution of India for deciding the
representations and review petition submitted by the petitioner
against the ACRs in question.
The petitioner present in person submits that in this petition,
the petitioner has prayed for quashing adverse remarks relating
to the years 2003 (Part-1 and Part-2) and 2004 (Part-2), but to
prejudice the prayer of the petitioner, certain preliminary
objections are raised by the respondent High Court, but those
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preliminary objections are far from the truth and not even
relevant for the purpose of deciding the controversy involved in
this writ petition. However, it is submitted that according to the
respondent High Court, the review petition filed by the petitioner
on 23.4.2007 was kept under consideration because inquiry in
relation to such remarks was pending. It is true that for the same
remarks, a charge-sheet was served under Rule 16 of the CCA
Rules, but in the said charge-sheet, wrongly operative portion of
the judicial order passed in SB Civil Revision Petition
No.1477/2001, decided on 26.8.2003, was incorporated. The said
inquiry was concluded and the inquiry officer submitted its report
on 20.1.2010. In the said inquiry report noting adverse was
reported with regards to doubtful integrity. The petitioner submits
that fact of pendency of inquiry is accepted by the respondent in
the preliminary objection raised in the reply and submitted that in
spite of receiving the inquiry report dated 20.1.2010, the
petitioner was given compulsory retirement, therefore, such
inquiry report cannot be taken into consideration for maintaining
the adverse remarks of the year 2003 (Part-1 and Par-2) and of
the year 2004 (Part-2), which is under challenge in this writ
petition.
The petitioner present in person vehemently argued that it is
a case in which to crash the future of the petitioner, intentionally
record has been prepared and fabricated so as to record adverse
remarks with regard to doubtful integrity in the ACRs of year
2003-04. With above arguments, it is prayed that this writ
petition may kindly be accepted and adverse remarks of the years
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2003 (Part-1 and Part-2) and 2004 (Part-2) may kindly be
quashed and set aside. In support of his arguments, he has
invited our attention towards the following judgments:
1. Union of India Vs. E.G. Nambudari 1991 (3) SCC 38
2. M.S. Bindra Vs. Union of India (1998) 7 SCC 310
3. State of UP Vs. Yamuna Shanker Misra, (1997) 4 SCC 7
4. Nand Kumar Verma Vs. State of Jharkhand, (2012) 3 SCC
580
Per contra, learned counsel appearing for the respondent
Rajasthan High Court Mr. Manoj Bhandari vehemently argued that
petitioner is not entitled for any relief as prayed for the simple
reason that he has challenged the adverse remarks after passing
of the compulsory retirement order against him in the year 2012
and before filing the present writ petition, the petitioner has not
chosen to challenge the adverse remarks of the years 2003 and
2004, which were taken into consideration for exercising power to
give compulsory retirement, therefore, on the ground of delay, no
interference is called for in this writ petition.
Learned counsel for the respondent further submitted that all
the contentions raised in the writ petition with regard to the fact
that his entire service record remained unblotted and
unblemished are far away from truth because each and every
action taken against the petitioner during his service tenure, is
specifically mentioned in the preliminary objection raised in the
reply. Therefore, the contention of the petitioner that his
integrity is unimpeachable and his work efficiency is consistently
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very good is not correct. His entire service record speaks
otherwise because since his appointment as judicial officer from
the year 1992 his integrity remains under clouds till passing the
order of compulsory retirement, which is evident from paras A to
N of preliminary objections raised in the reply. The entire material
and adversities exist in the service record of the petitioner have
been incorporated in the reply, therefore, how it can be said that
petitioner is competent officer and remarks about his integrity are
false.
With regard to the contention of the petitioner that ACRs of
number of judicial officers were downgraded by the then Acting
Chief Justice and later on, expunged upon their
representations/review petitions, it is submitted that those
representations and review petitions were considered upon the
merit of each and every case, therefore, the petitioner cannot
claim any advantage by saying that representations filed by the
number of judicial officers were accepted and discriminately his
representation/review petition is rejected. Therefore, there is no
force in the argument of the petitioner that the High Court
administration has practiced discrimination and violated Article 14
of the Constitution of India.
With regard to rejection of his review petition after his
compulsory retirement, it is submitted that after passing
compulsory retirement order when it is found that review petition
of the petitioner was kept in sealed cover due to pendency of
inquiry under Rule 16 of the CCA Rules for the same charge, the
said review petition was dismissed while observing that it is not
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maintainable. The word "maintainable" is used only for the reason
that petitioner was already retired compulsorily and not for the
purpose of maintainability of review petition. As per respondent
there is no force in the argument of the petitioner that review
petition against the ACRs of 2003 (Parrt-1 and Part-2) and 2004
(Part-2) was pending on the date of his compulsory retirement.
The crux of argument of learned counsel for the respondent
is that representation and review petition filed by the petitioner
against the adverse remarks communicated to him for the ACRs
of the years 2003 (Part-1 and Part-2) and 2004 (Part-2) were
properly considered and rejected as per law. As such, the
petitioner is not entitled for any relief, hence, this writ petition
may kindly be dismissed.
After hearing the petitioner as well as the learned counsel
appearing for the Rajasthan High Court it emerges from the facts
that in this writ petition the petitioner has prayed to quash the
adverse remarks of ACRs of the years 2003 (Part-1 an Part-2) and
2004 (Part-2) in which adverse remarks with regard to "doubtful
integrity" were recorded against him. It is also true that
question of delay is important aspect of the matter, but at the
same time, we cannot lose sight of the fact that the review
petition of the petitioner was kept in sealed cover and it was not
decided till passing of the order of compulsory retirement, but
rejected in the month of July, 2010, therefore, when respondent
High Court kept the review petition pending from the year 2007
to 2010, then this petition cannot be dismissed on the ground of
delay, therefore, we are examining the grievance of the petitioner.
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During the course of arguments, upon our direction, the
dossier of the ACRs of petitioner was submitted before us for
perusal. A perusal of the same would reveal that in the year 2003,
the petitioner was posted as Chief Judicial Officer, Jaipur from
1.1.2003 to 16.5.2003 and District & Sessions Judge, Jaipur City
rated him as „good‟ officer and integrity certificate was given in
favour of the petitioner, but Hon'ble Inspecting Judge downgraded
him and give remark „average‟. Thereafter, the Hon'ble
Administrative Judge gave remarks "integrity is highly doubtful".
The said remark was made on 5.5.2004 by the Hon'ble
Administrative Judge, but no further remarks were recorded
because the Hon'ble Chief Justice Mr. Anil Dev Singh was
superannuated. The adverse remarks for the said period was
communicated to the petitioner vide communication dated
10.5.2005. It appears from the record placed before us that a
letter was received by the Registrar General written by Hon'ble
Mr. Justice S.K. Keshot was placed before Hon'ble the Chief
Justice on 17.9.2005 and it was decided that original PUC itself
may be placed in the service record/ACR file of the petitioner. The
note which is submitted by Hon'ble Mr. Justice S.K. Keshot,
ordered to be placed in the service record, reads as under:-
"Sub: SB Civil Revision Petition No.144/2001
Ramphool Vs. State of Rajasthan and Anr. placed on
the board for admission on 26/8/2003.
Ref: The order dated. 11/09/2001 passed
by Shri Brijesh Purohit, RJS, Additional Civil Judge
(Senior Division) No.5, Jaipur City, Jaipur titled as State
of Rajasthan and Anr. Vs. Ramphool in Civil Misc.
Applciation No.36/2001.
***
I had an occasion to consider the legality, (13 of 29) [CW 3932/2012] property and correctness of the order dated dt.11/09/2001 passed by this Officer in Civil Misc. Application No.36/2001 under caption in SB Civil Revision Petition No.1477/2001 (Ramphool Gujar Vs. State of Rajasthan and anr.).
Shri Brijesh Puorhit, the then Additional Civil Judge (Senior Division) No.5, Jaipur city, Jaipur vide his order under reference has set-aside the ex-parte decree dt.18/05/2001 passed in Civil Suit No.29/2001. The order passed by him on the application filed by the defendants-respondents under Order 9 Rule 13 CPC, as under: -
"izdj.kds rF;ksa ,oa ifjfLFkfr;ksa dks /;ku esa j[kk x;k ewy okan la- 29@2001 muokuh jkeQwy cuke jkT; & ljdkj esa fnukad 18-05-2001 dks ikfjr ,d i{kh; fMxzh lSV vlkbZV dh tkrh gSA izkFkhZ@vizkFkhZ dks 150@& dksLV vnk djsA"
Order 9 Rule 13 CPC empowers the court to set- aside a decree passed by it ex-parte. Sine qua non to set-aside the ex-parte decree is that the court is satisfied on the material produced on the record that the counsel or the party have prevented by the sufficient cause from attending the suit when the same was called for hearing. In the order, the learned court below has not recorded his satisfaction. He even has not made any reference to the facts of the case what to say the grounds which have been prevailed with to record the satisfaction that the defendants have been prevented by sufficient cause from appearing in the suit. This order on the face of it is perverse. It is not benefitting to an officer of the rank of Civil Judge (Senior Division) to pass such a cryptic order. There are serious complaints against this officer. By ex-parte decree, the valuable right is accrued to the other side and it cannot be taken away by the judicial officer in such slipshod, careless and negligent manner. It is true (14 of 29) [CW 3932/2012] this is an order passed in the judicial proceedings but one thing is clear he is not an officer having judicial approach in the matter. He appears to be an officer in the habit to deal with matters casually and cursory only.
It appears that Shri Purohit would have passed this order for some consideration, cash or kind, or extended favour to some undisclosed person. It may be a matter of enquiry. In all the eventualities, one thing is very clear that he does not know, appreciate and understand the law.
In my opinion, such officers are not only blot to the judiciary but an unnecessary burden.
These remarks may be placed in the service record of this Judicial Officer.
Sd/-
JUSTICE S.K. KESHOTE Dated: 05/09/2003 Registrar General"
After perusing the aforesaid letter, we have perused the order dated 28.8.2003 passed by Hon'ble Mr. Justice S.K. Keshot in SB Civil Revision Petition No.1477/2001 in which following order was made, which reads as under:
"The revision petition was placed on the board for preliminary hearing on 7.12.2001. The Court issued notices to the respondents to show cause as to why this revision petition should not be admitted and disposed of. The record has also been called. Despite service of notices, nobody is present on behalf of the respondents.
Under the impugned order, the Additional Civil Judge (Senior Division) No.5, Jaipur City, Jaipur granted application filed by the defendants- respondents Order 9 Rule 13 CPC.
In suit No.29/2001 filed by the plaintiff- petitioner against the defendants-respondents for (15 of 29) [CW 3932/2012] declaration of permanent injunction, ex-parte decree was passed on 18.5.2001. The learned trial Court has not recorded any reason or ground whatsoever in support of his order to allow this application. He allowed this application merely stating that keeping in view the facts & circumstances of the case, the ex- parte decree is set-aside. The Presiding Officer of the Court Shri Brijesh Purohit either does not understand the law or of some other reasons or consideration passed this order in favour of the defendants- respondents. The decree has been passed in the suit, may be ex-parte and before setting aside it he has to record its own satisfaction on the basis of the material produced that there is a good cause and ground for setting aside the same. This has not been done. It is a perverse order passed by this Officer which cannot be allowed to stand.
Accordingly, this revision petition succeeds and the same is allowed. The order dt.11/9/2001 in Civil Misc. Application No.11/2000 is quashed and set- aside. The learned trial Court is directed to decide the application afresh in accordance with law.
Consequent upon decision of the revision petition itself, the stay application does not survive and the same is also dismissed. The interim relief if any granted earlier and continued till this date stand vacated."
In the aforesaid judicial order it was observed that "The Presiding Officer of the Court Shri Brijesh Purohit either does not understand the law or of some other reasons or consideration passed this order in favour of the defendants-respondents. The decree has been passed in the suit, may be ex-parte and before setting aside it he has to record its own satisfaction on the basis of the material produced that there is a good cause and ground for setting aside the same. This has not been done. It is a perverse order passed by this Officer which cannot be allowed to stand", whereas in the letter Hon'ble Mr. Justice S.K Keshot communicated to the High Court administration that "it appears that petitioner would have passed this order for some (16 of 29) [CW 3932/2012] consideration cash or kind or extended benefit to some undisclosed person. It may be a matter of inquiry." Upon above letter, a decision was taken to initiate inquiry against officer under Rule 16 of the CCA Rules for which a charge-sheet was issued to him under Rule 16 of the CCA Rules in which alongwith other charges, two charges were levelled against the petitioner regarding the ACRs of 2003 Part-1 and Part-2 and of 2004 Part-2.
Upon perusal of allegations it is abundantly clear that there was charge in relation to SB Civil Revision Petition No.1477/2001 decided on 26.8.2003, therefore, in the charge-sheet the order was reproduced, but upon perusal of the original judicial order passed in SB Civil Revision Petition No.1477/2001, decided on 26.8.2003 no such language was used by the Hon'ble Judge, which is incorporated in the charge-sheet under Rule 16 of the CCA Rules and in the reply filed by the High Court it was specifically pleaded that aforesaid strictures were passed in the order dated 26.8.2003 passed in SB Civil Revision Petition NO.1477/2001.
In view of the above facts, when reporting officer rated him „good‟ and „average‟ officer, the inspecting judge did not give any adverse remarks with regard to doubtful integrity, then obviously the remark of doubtful integrity were not to be made before conclusion of the inquiry because decision was taken to initiate departmental inquiry against the petitioner upon the letter of Justice Keshote dated 5.9.2003. It is also very relevant to mention here that at the time of deciding the representation/review petition of the petitioner against the adverse remarks of the ACRs (17 of 29) [CW 3932/2012] of 2003 (Part-1 and Part-2), the High Court administration was required to wait for the conclusion of the inquiry initiated against the petitioner upon the letter written by Hon'ble Mr. Justice S.K. Keshot.
We have perused the ACR of 2004 (Part-2). When petitioner was posted as CJM, Dungarpur, the District Judge, Dungarpur rated him good officer, the inspecting judge mentioned that there is no reason to disagree with remarks of reporting officer, but it is very strange that the then Administrative Judge gave remarks „integrity not beyond doubt. Average officer" and downgraded him from „good‟ to „average‟, but there is no material to substantiate or support the downgrading of the ACR from „good‟ to „average‟, which is given by the Sessions Judge, as well as, Inspecting Judge. In the relevant year, the work disposal of the petitioner was 155.29% and as per reply there was no adverse fact or complaint was received against him.
Upon overall assessment of the pleadings, it emerges from the record that the petitioner is aggrieved with the remarks made in annual confidential reports of the year 2003 (Part-1 and Part-
2) and of the year 2004 (Part-2) on the ground that the downgrading remarks about his integrity and efficiency were made without any evidence, which is mandatory because as per the judgments of the Hon'ble Supreme Court, while deciding the representation, it is the duty of the administration to record the reasons to reject the representation. It is admitted position of the case that number of review petitions of other officers were allowed even after rejection of representations.
(18 of 29) [CW 3932/2012] In Union of India Vs. E.G. Nambudiri (supra), in para no.9 and 10,the Hon'ble Supreme Court gave following verdict, which reads as under:-
"9. There are however, many areas of administrative activity where no reasons are recorded or communicated, if such a decision is challenged before the Court for judicial review, the reasons for the decision may be placed before the court. The superior authority while considering the representation of a Government servant against adverse remarks, is not required by law to act judicially, it is under no legal obligation to record or communicate reasons for its decision to the Government servant. The decision, rejecting the representation does not adversely affect any vested right of the Government servant nor does it visit him with any civil consequences. In many cases having regard to infinite variations of circumstances, it may not be possible to disclose reasons for the opinion formed about the work and conduct or character of the Government servant. In the instant case adverse remarks as contained in item Nos. 1 to 4 were expunged but those at serial numbers 5 and 6 were not expunged and the respondent's representation to that extent was rejected. On a careful scrutiny of the two remarks, it would appear that observation contained in Item No. 5 "that nothing adverse has come to notice regarding your integrity" is not adverse to the respondent's work and conduct. These remarks are neutral in nature, and they do not adversely comment upon the respondent's work, conduct or character, though they are no commendatory in nature. As regards the remarks at Serial No. 6, they are self-explanatory, which show that inspite of oral and written warnings the respondent the respondent did not improve. If the superior authority was not satisfied with the explanation of the respondent as cantained in his representation, what reasons could be stated, except that the authority was not satisfied with the explanation. The superior authority was not obliged to write detail judgment or order giving details of the warnings or the material on which he formed opinion.
10. There is no dispute that there is no rule or administrative order for recording reasons in rejecting a representation. In the absence of any (19 of 29) [CW 3932/2012] statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reason. But the competent authority has no licence to act arbitrarily, he must act in a fair and just manner. He is required to consider the questions raised by the Government servant and examine the same, in the light of the comments made by the office awarding the adverse entries and the officer counter-signing the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. No order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex facie and it is not open to the court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the Government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. If such an order is challenged in a court of law it is always open to the competent authority to place the reasons before the Court which may have led to the rejection of the representation. it is always open to an administrative authority to produce evidence alinude before the court to justify its action."
In the case of M.S. Bindra Vs. Union of India (supra), the Hon'ble Supreme Court made the following adjudication in para no.13, which also reads as under:
(20 of 29) [CW 3932/2012] "13. While viewing this case from the next angle for judicial scrutiny i.e. want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials no reasonable man would reach such a conclusion. While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "Nemo Firut Repente Turpissimus" (no one becomes dishonest all on a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of Administrative Law.
The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity". In the case of State of UP Vs. Yamuna Shanker Misra (supra), the Hon'ble Court gave following adjudication, which reads as under:
"7. It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51A (j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of (21 of 29) [CW 3932/2012] the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting/officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite given giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion."
In the case of Nand Kumar Verma Vs. State of Jharkhand (supra), the Hon'ble Supreme Court in paras nos.34 to 41 held as under:
"34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the concerned authority but such satisfaction must be based on a valid material. It is permissible for the Courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the appellant was unsatisfactory, has selectively taken into consideration the service record for certain years (22 of 29) [CW 3932/2012] only while making extracts of those contents of the ACR's. There appears to be some discrepancy. We say so for the reason that the appellant has produced the copies of the ACR's which were obtained by him from the High Court under the Right to Information Act, 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of the ACRs.
35. The High Court has taken the decision on the basis of selective service record which includes the summarized ACR's, as quoted in the impugned judgment, for the selected years. The ACR for the initial years: 1975-76 and 1976-77 remarks him as capable of improvement against quality of work, the ACR's for the years: 1982-83, 1983-84 points that his work is unsatisfactory, the ACR's for the year: 1984-85, 1987-88 remark his work performance as unsatisfactory with bad reputation and quarrelsome attitude, and the ACR for the later years: 1993-94 & 1994-95 refers to some private complaints and remark that his powers were divested by the High Court and the ACR's for the recent years: 1997-98 & 1998-99 points that no defect in judicial work but disposal of cases is poor. Whereas, the appellant furnished certain Service records which includes: the ACR recorded by inspecting Judge in the year 1985 which evaluate the appellant as `B'-Satisfactory against the entry "Net result", further the ACR prepared by the District and Sessions Judge, Samastipur for the year 1997-98 assessed him as an officer of average merit, maintaining good relationship with bar, staffs and colleagues but poor disposal, and the ACR prepared by the District and Sessions Judge, Muzaffarpur for the year 1998-99 assessed him as a good officer but poor disposal. However, his poor disposal during this period is justified up to certain extent in the background of his involvement in the continuous and unnecessary disciplinary proceedings which was based on the charges of granting of bail indiscriminately, even after, the fact that he had been exonerated of these charges long back in the year 1995 by the High Court at Patna.
36. The material on which the decision of the Compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the (23 of 29) [CW 3932/2012] subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the appellant compulsorily from service.
37. In Swami Saran Saksena v. State of U.P., (1980) 1 SCC 12, this Court has quashed the order of Compulsory retirement of the appellant, therein, in the public interest, which was found to be in sharp contradiction with his recent service performance and record. This Court observed:
"3. Ordinarily, the Court does not interfere with the judgment of the relevant authority on the point whether it is in the public interest to compulsorily retire a government servant. And we have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made on the recommendation of the High Court itself. But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second efficiency bar the appellant was considered to have worked with distinct ability and with integrity beyond question, yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the appellant's work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of opinion that the order of compulsory retirement should be quashed. The appellant will be deemed to have continued in service on the date of the impugned order.
38. Moreover, the District and Sessions Judge have the opportunity to watch the functioning of the appellant from close quarters, who have reported favourably regarding the appellant's overall performance except about his disposal, in the appellant's recent ACR for the year 1997-98 and 1998-99. In view of this, the greater (24 of 29) [CW 3932/2012] importance is to be given to the opinion or remarks made by the immediate superior officer as to the functioning of the concerned judicial officer for the purpose of his compulsory retirement. The immediate superior is better placed to observe, analyse, scrutinize from close quarters and then, to comment upon his working, overall efficiency, and reputation.
39. In Nawal Singh v. State of U.P., (2003) 8 SCC 117, this Court has observed thus:
"12. ... In the present-day system, reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the performance of the officer concerned from close quarters and formation of his opinion with regard to the overall reputation enjoyed by the officer concerned would be the basis."
40. In view of the above discussion, we are of the opinion that the High Court was not justified in sustaining the orders passed by the Full Court of the same High Court. Accordingly, we allow this appeal, set aside the orders passed by the High Court.
41. Since the appellant has retired from service on attaining the age of superannuation, he is entitled to all the monetary benefits from the date of his notional posting as C.J.M. till his notional retirement from service on attaining the age of superannuation, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this order. Ordered accordingly."
In the aforesaid judgments, the Hon'ble Supreme Court has categorically held that there must be objective consideration of the facts and evidence for writing remarks in the confidential report and there must be proper assessment of facts and evidence so as to make remarks with regard to doubtful integrity of the officer. Upon perusal of the record of this case, it is revealed that (25 of 29) [CW 3932/2012] neither reporting officer nor inspecting judge made any remark with regard to doubtful integrity and it emerges from the facts that so called remarks of doubtful integrity given by the Administrative Judge/Acting Chief Justice for the ACRs of 2003 (Part-1 and Part-2) and of 2004 (Part-2) solely on the basis of the letter written by the Hon'ble Just, who has decided SB Civil Revision Petition No.1477/2001. In that judicial order also, it is nowhere observed that the petitioner passed an order to set aside the ex-parte decree for some consideration, cash or kind or extended benefit to some undisclosed person. In fact, in the judicial order dated 26.8.2003 passed in SB Civil Revision Petition NO.1477/2001, the learned Single Judge observed that "the Presiding Officer of the court Shri Brijesh Purohit either does not understand the lawor of some other reasons or consideration passed this order in favour of the defendants-respondents, but it is very strange that a letter was communicated to the Registry on 5.9.2003, which is incorporated in this judgment. The Hon'ble Judge made following assertion, which reads as under:-
"It appears that Shri Purohit would have passed this order for some consideration, cash or kind, or extended favour to some undisclosed person. It may be a matter of enquiry. In all the eventualities, one thing is very clear that he does not know, appreciate and understand the law."
In the rejoinder, a copy of the inquiry report is annexed by the petitioner in which inquiry was conducted for following allegations, which reads as under:
"The allegations against the delinquent officer are, firstly that while posted as Additional Civil Judge (26 of 29) [CW 3932/2012] (SD) & Addl. Chief Judicial Magistrate No.5, Jaipur City, Jaipur, he entertained Civil Suit No.29/2001 on 5.5.2001, filed by one Ramphool s/o Bheru Ram Gurjar, against the State of Rajasthan through the Chief Secretary, and the Collector, Jaipur and cancellation of patta dated 21.12.1999, granted in favour of Bhura and Ramdeo, sons of Heera Lal, and also for cancellation of the NOC dated 30.3.2000, given for construction and running of cinema hall. He also entertained application for temporary injunction, being 16/2001, filed therewith, and fixed the date for service on defendants on 8.5.2001, on which date, order for ex-parte proceeding was passed, on account of the non appearance of the defendants, and after recording evidence of four witnesses ex-parte, the said civil suit was decreed on 18.5.2001, by granting relief to plaintiff Ramphool, as sought for. This suit was decreed, in hot haste, in collusion, with some extraneous consideration, or otherwise, as Bhura and Ramdeo, in whose favour patta and NOC were earlier granted were necessary party, but they were not so impleaded, whereby their rights were adversely affected.
The second allegation is, that in the said suit an application under O. 9 Rule 13 CPC was filed by the defendants on 11.7.2001, and after issuing notices to the plaintiff Ramphool, the ex-parte decree was set aside on 11.9.2001, without assigning any reason, on a time barred application. This order was set aside by the High Court, in S.B. Civil Revision Petition No.1477/2001, decided on 26.8.2003, by making the following observations: -
"It appears that Shri Purohit would have passed the judgment for some consideration, cash or kind or extended favour to some undisclosed person. It may be a matter of enquiry. In all the eventualities, one thing is (27 of 29) [CW 3932/2012] very clear that he does not know appreciate and understand the law."
The third allegation is, that in the above suit, an application for disobedience was filed under O. 39 Rule 2A by Ramphool, against Inderjeet Khanna, Chief Secretary of the State Government, and Shri B.N. Sharma, Collector, Jaipur on 31.5.2001. Thereupon the delinquent issued notice. However, during his tenure upto 2.5.2003, neither notices were issued, nor non applicants appears, and after his transfer from the post of ACMJ No.5, Jaipur City, the above application was dismissed for non appearance and non prosecution by the plaintiff.
Next allegation is that likewise when the suit was restored, i.e. ex-parte decree was set aside, the Patta and NOC holder Bhura and Ramdeo filed application under O. 1 Rule 10 for impleading them as party in the suit, as well as temporary injunction application on 15.10.2001, which was allowed by him on 15.12.2001, and ultimately the said suit was dismissed for non prosecution, and non appearance on 17.7.2004, i.e. after his transfer.
The next allegation is, that series of above events reveal, that the delinquent passed a decree for cancellation of Patta and NOC, then set aside the ex- parte decree, and allowed the application for impleading necessary parties, in collusion with the plaintiff, for some extraneous consideration or otherwise."
After perusing the order dated 26.8.2003 passed in SB Civil Revision Petition No.1477/2001, the observations made in letter dated 5.9.2003 and the charges mentioned in the inquiry report, we are of the opinion that before finalization of the inquiry, the remarks of doubtful integrity were not to be made because there (28 of 29) [CW 3932/2012] is no OTHER evidence on record to prove the observations made by Justice Keshot in the communication dated 5.9.2003 for taking some consideration, cash or kind or to extend favour to some undisclosed person and even if the so called remarks of doubtful integrity were to be made in the ACRs of 2003 (Part-I and Part-2) and of 2004 (Part-II) then it was to be made after conclusion of the inquiry initiated against the petitioner for the said allegation.
In our opinion, the dignity of the judicial officer is required to be respected in all respect and if any material evidence found with regard to doubtful integrity, then of course, such type of remarks should be made but not otherwise. In present case, it is obvious that on one hand the High Court administration decided to hold an inquiry for the allegation levelled against the petitioner for doubtful integrity and on the other hand, without waiting for come out of the inquiry, made adverse remarks with regard to doubtful integrity in the ACRs of the petitioner for the year 2003 (Part-1 and Part-2) and for the year 2004 (Part-2). It is true that the charge-sheet was given not only for the observations made by the Hon'ble Judge vide communication dated 5.9.203, but also for other alleged misconduct, but fact remains that without finalization of inquiry, the adverse remarks are made in the ACRs of the petitioner and review petition filed by him was kept in sealed cover due to pendency of inquiry and after passing compulsory retirement order, the review petition was rejected on the ground of maintainability after three months.
It is also worthwhile to observe that contention of the petitioner with regard to downgrading of ACRs of number of (29 of 29) [CW 3932/2012] persons has been accepted in the reply filed by the High Court and it is also accepted that upon representation/review petition, remarks of most of the officers were expunged, but in case of petitioner, the review petition was kept in sealed cover because inquiry under rule 16 of the CCA Rules on the basis of letter sent by the Hon'ble Judge was pending and without waiting for final decision of inquiry, the remarks of doubtful integrity were made in the ACRs of the petitioner of the year 2003 (Part-1 and Part-2) and of the year 2004 (Part-2), even though the integrity certificates were issued by the respective District & Sessions Judges under whom he was working.
In view of the above, the instant writ petition is hereby allowed and the adverse remarks of downgrading recorded in the ACRs of the petitioner Brijesh Purohit for the year 2003 (Part-1 and Part-2) and for the year 2004 (Part-2) are hereby quashed and set aside.
(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J. cpgoyal/ps