Orissa High Court
Indramani Sahu vs State Of Orissa And Another on 24 October, 2017
Author: B.K. Nayak
Bench: B.K. Nayak
THE HIGH COURT OF ORISSA : CUTTACK
O.J.C. No.6601 of 1995
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
---------------
Indramani Sahu ... Petitioner
-Versus-
State of Orissa & another ... Opposite Parties
For Petitioner : M/s. Bijan Ray, B. Mohanty,
C. Choudhury, D.R. Pattnaik,
A. Mohanty, R.K. Biswal &
Debasis Chhotray
For Opposite Parties : Mr. Bibhu Prasad Tripathy,
Additional Government Advocate
PRESENT:
THE HON'BLE MR. JUSTICE B.K. NAYAK
&
THE HON'BLE DR. JUSTICE D.P. CHOUDHURY
___________________________________________________
Date of hearing: 20.07.2017 Date of Judgment:24.10.2017
___________________________________________________
Dr. D.P. Choudhury, J. This writ application is assailed against the order of
compulsory retirement passed by the opposite parties against
the petitioner while the petitioner attained the age of 50 years.
FACTS
2. The adumbrated facts of the petitioner is that the
petitioner was working as an Assistant in this Court from
2
21.4.1969 and while continuing as such he was selected for
appointment as Munsif on probation in Class-II of the Orissa
Judicial Service (hereinafter called "O.J.S.") on 21.8.1976.
3. While the petitioner was continuing as S.D.J.M.,
Chatrapur, the District Judge, Ganjam by his confidential letter
communicated adverse remarks against the petitioner for the
year 1980-1981 and the petitioner made representation to
expunge the adverse remarks vide Annexure-3. Be it stated that
the petitioner was promoted to Orissa Judicial Service, Class-I by
the then Recruitment Rule as erstwhile Subordinate Judge,
Deogarh in the undivided judgeship of Sambalpur vide order
dated 28.2.1987. While serving in O.J.S., Class-I he had also
served as Special Officer in the office of the Director, Public
Prosecution and thereafter he was also appointed as Assistant
Sessions Judge at Bhanjanagar having been conferred with such
power by this Court.
4. Be it stated that after the posting at Bhanjanagar the
petitioner was again transferred as Additional Civil Judge (Senior
Division) and Registrar, Civil Courts, Keonjhar and while
continuing as such in Keonjhar, he did not get a fair deal from
the then learned District Judge, Keonjhar because the petitioner
allegedly did not accede to his illegal and untenable demands.
3
5. It is stated that the petitioner was shortly thereafter
transferred as Additional Civil Judge (Senior Division)-cum-
Registrar, Civil Courts, Sambalpur with effect from 10.7.1995.
There was no incapacity or inefficiency or any doubtful integrity
on the part of the petitioner while he has served but suddenly on
19.8.1995 the petitioner was prematurely retired under
purported exercise of power conferred under Clause (a) of Rule
71 of the Orissa Service Code (hereinafter called "the Code") at
the instance of opposite party No.1. The petitioner made
representation against such illegal action of the opposite party
No.1 but no action was taken on the representation. Be it stated
that the reasons or grounds in exercise of power under Rule 71
(a) of the Code are not available against the petitioner because
the order of compulsory retirement has conspicuously absence of
with any reasons. Except the adverse entry communicated in
1980-81, no other entry has been communicated to the
petitioner and since he has been promoted from Class-II to
Class-I service, there is reason to believe that the action taken
against the petitioner is biased, arbitrary and unreasonable. So,
the petitioner filed the writ petition to quash the impugned order
vide Annexure-6.
4
6. Opposite party No.2 filed the counter affidavit
refuting the allegations made in the petition. It is stated that the
adverse entry against the petitioner in 1980-1981 has not been
expunged. The performance of the petitioner was not at all
commendable because he required a lot of improvement in the
judicial side as well as in the administrative side as observed by
this Court from time to time. The overall performance of the
petitioner during his entire service period was not up to
satisfaction for which the observations of this Court were
communicated to him.
7. It is further stated that merely because the petitioner
was given promotion to the next higher grade, it did not mean
that all the adverse remarks in his C.C.Rs were wiped out. The
criteria for promotion is not depending on the criteria while
considering the person for review of his service as it is settled in
law that the deadwood should be removed for the interest of the
institution by giving them compulsory retirement. It is the
subjective satisfaction of the employer to allow the employee to
continue in service subject to his performances put in the entire
years of service he rendered. So, taking into consideration of his
entire career and the ability of the petitioner with regard to his
knowledge in law, integrity and responsibility, the Court decided
5
to recommend for his compulsory retirement and His Excellency,
the Governor after considering the materials accepted the
recommendation for which the impugned order of premature
retirement passed against the petitioner was legal and proper. It
is stated that the ratio of the case law cited by the petitioner is
not applicable to the facts and circumstances of the case.
SUBMISSIONS
8. Mr. Choudhury, learned Counsel for the petitioner
submitted that the statutory Rule 71 (a) of the Code has not
been followed in the present case by the opposite parties while
awarding compulsory retirement to the petitioner. He submitted
that the G.A. Department notification dated 24.11.1987
regarding procedure for premature retirement as prescribed in
pursuance of Rule 71 (a) of the Code has been seriously
departed for which it cannot be said the compulsory retirement
to the petitioner has been awarded in public interest.
9. Mr. Choudhury, learned counsel for the petitioner
further submitted that while considering the case for premature
retirement although it is desirable to make an overall
assessment of the petitioner's entire service record, more value
should be attached to the period immediately preceding the date
of consideration of premature retirement. He submitted so by
6
relying upon the decision reported in AIR 1995 SC 111 and
AIR 1998 SC 948. In the case of the petitioner there is no
evidence of doubtful integrity. Although the O.Ps. have taken a
baseless solitary remark from the C.C.R. about the doubtful
integrity, he submitted that the opposite parties should not have
ignored the reputation the petitioner has occupied till the date of
his compulsory retirement.
10. Mr. Choudhury further contended that for the adverse
remark made in 1980 and 1981 the petitioner has made
representation but same has not been disposed of till date but
on the other hand he has been promoted to the post of Class-I in
spite of such adverse remark for which it is presumed that such
adverse remark has been expunged. Apart from this, the
adverse entry used by opposite parties against the petitioner has
not been communicated to the petitioner for which same cannot
be used against him while awarding premature retirement. On
the other hand, the principle of natural justice has been seriously
violated in the case of the petitioner by not giving him an
opportunity of hearing. So, he submitted to set aside the order
of compulsory retirement and since the petitioner has already
retired in the meantime, it is presumed that the petitioner is
deemed to have been continued in service and the entire service
7
benefits including the retiral benefits be accrued to the
petitioner.
11. Mr. B.P. Tripathy, learned Additional Government
Advocate submitted that the Court considered the entire service
period of the petitioner as it is settled in law that while
considering an employee for compulsory retirement, his entire
service period should be considered. He further submitted that
the service record of the petitioner is not good and he has been
awarded adverse entries which are also taken into consideration
while reviewing his service career. According to him, Rule 71 (a)
has been properly followed in this case because the petitioner
has been awarded three months salary advance in lieu of three
months notice and awarded compulsory retirement. Moreover,
the promotion of the petitioner from O.J.S. Class-II to O.J.S.
Class-I cannot be a criteria to expunge the adverse remarks and
moreover, the representation of the petitioner to expunge the
adverse remarks has been rejected. According to him, the
washed-off theory may be applicable for the sake of promotion
but same would not be applicable while reviewing the service of
a person at the age of 50, 55 or 58 as it has already been well
settled by catena of decisions. After going through the entire
service record, the Court felt that the entire service career of the
8
petitioner was not up to satisfaction and it being well settled in
law that the dead-wood should be removed, the petitioner has
been compulsorily retired in public interest.
12. Mr. Tripathy, learned Additional Government
Advocate submitted that the performance of the petitioner was
not commendable requiring lot of improvement in judicial side as
well as in administrative side as observed by the Court from time
to time and mere promotion is not enough to wash-off his
adverse entry more particularly with regard to the remark of
adverse integrity he has got in his service career. So, he
supports the order of compulsory retirement.
13. Mr. Tripathy, learned Additional Government
Advocate further submitted that the compulsory retirement
under first proviso to Rule 71 (a) of the Code is neither punitive
nor stigmatic but it is one of the facets of the doctrine of
pleasure incorporated in Article 310 of the Constitution of India
and since the action has been taken against the petitioner
without any bias, mala fideness and arbitrariness, same suffer
from no infirmity. Hence, the writ petition should be dismissed.
14. Main point for consideration:-
(i) Whether the petitioner is liable to be compulsorily retired
from service?
9
DISCUSSION
15. Before going to the fact of the case, it is necessary to
discuss on the points of law involved in this case. This is a case
of compulsory retirement not awarded basing on any
departmental enquiry as per Rule 13 of the Orissa Civil Services
(Classification, Control and Appeal) Rules but it is a case where
action has been taken under Rule 71 (a) of the Orissa Service
Code which is produced below for reference:-
"71.(a) Except as otherwise provided in the
other clauses of this rule the date of compulsory
retirement of a Government servant, except a
ministerial servant who was in Government service
on the 31st March 1939 and Class IV Government
servant, is the date on which he or she attains the
age of 58 years subject to the condition that a review
shall be conducted in respect of the Government
servant in the 55th year of age in order to determine
whether he/she should be allowed to remain in
service up to the date of the completion of the age of
58 years or retired on completing the age of 55 years
in public interest :
Provided that a Government servant may retire
from service any time after completing thirty years'
qualifying service or on attaining the age of fifty
years, by giving a notice in writing to the appropriate
authority at least three months before the date on
which he wishes to retire or by giving the said notice
to the said authority before such shorter period as
Government may allow in any case. It shall be open
to the appropriate authority to withhold permission to
a Government servant who seeks to retire under this
rule, if he is under suspension or if enquiries against
him are in progress. The appropriate authority may
also require any officer to retire in public interest any
time after he has completed thirty years' qualifying
service or attained the age of fifty years, by giving a
notice in writing to the Government servant at least
three months before the date on which he is required
10
to retire or by giving three months pay and
allowances in lieu of such notice".
The aforesaid provision made it clear that a
Government servant can be compulsorily retired for public
interest although public interest has not been defined but same
is discernible from Clause 7 of the notification issued by the
State Government in General Admn. Deptt. No.30495-G.A.,
dated the 24th November, 1987 which is also reproduced below:-
"7. It will not be in public interest to retain an
employee in service if -
(a) he is clearly lacking in integrity, or
(b) although his integrity is not in doubt, his
physical or mental condition is such as to make
him inefficient for further service, or
(c) even though his work in a lower grade was
satisfactory, he clearly lacks in the standard of
efficiency required to discharge the duties of
the post he presently holds".
16. In the instant case, the Court has to consider
whether the petitioner has been awarded premature retirement
by complying all the above legal provisions. It is not in dispute
that the petitioner was appointed under erstwhile Orissa Judicial
Service Rules and same has been replaced by present Orissa
Superior Judicial Service and Orissa Judicial Service Rules, 2007.
Rule 44 of the present Rule depicts that the service of a person
would be reviewed at the age of 50, 55 and 58 but there is no
bar to review the service of officer at any time after he attains
11
the age of 50 years so as to weed out dead wood who are not
necessary for the interest of the organization. As there is no
similar provision in earlier Rule governing the condition of
service of the Judicial Officers at that time, Rule 71 (a) was
being pressed into service while reviewing the service of officers
at the age of 50, 55 and 58.
17. Both the parties have placed catena of decisions to
enlighten the Court as to under what circumstances the authority
can take a decision for awarding premature retirement to a
Government employee while he attains the above ages.
18. In the decision reported in Baldev Raj Chadha v.
Union of India and others; AIR 1981 SC 70 where Their
Lordships when considering the case of compulsory retirement
have observed at Para-8 in the following manner:
"8.This takes us to the meat of the matter, viz., whether
the appellant was retired because and only because it
was necessary in the public interest so to do. It is an
affirmative action, not a negative disposition, a positive
conclusion, not a neutral attitude. It is a terminal step
to justify which the onus is on the Administration, not a
matter where the victim must make out the contrary.
Security of tenure is the condition of efficiency of
service. The Administration, to be competent, must
have servants who are not plagued by uncertainty about
tomorrow. At the age of 50 when you have family
responsibility and the sombre problems of one's own
life's evening!, your experience, accomplishments and
fullness of fitness become an asset to the
Administration, if and only if you are not harried or
worried by 'what will happen to me and my family?'
'Where will I go if cashiered?' How will I survive when I
am too old to be newly employed and too young to be
12
superannuated?' These considerations become all the
more important in departments where functional
independence, fearless scrutiny, and freedom to expose
evil or error in high places is the task. And the
Ombudsmanic tasks of the office or audit vested in the
C. & AG. and the entire army of monitors and minions
under him are too strategic for the nation's financial
health and discipline that immunity from subtle threats
and oblique overawing is very much in public interest.
So it is that we must emphatically state that under the
guise of 'public interest' if unlimited discretion is
regarded acceptable for making an order of premature
retirement, it will be the surest menace to public
interest and must fail for unreasonableness,
arbitrariness and disguised dismissal. To
constitutionalise the rule, we must so read it as to free
it from the potential for the mischiefs we have just
projected. The exercise of power must be bona fide and
promote public interest. There is no demonstrable
ground to infer mala fides here and the only infirmity
alleged which deserves serious notice is as to whether
the order has been made in public interest. When an
order is challenged and its validity depends on its being
supported by public interest the State must disclose the
material so that the court may be satisfied that the
order is not bad for want of any material whatever
which, to a reasonable man reasonably instructed in the
law, is sufficient to sustain the grounds of 'public
interest' justifying forced retirement of the public
servant. Judges cannot substitute their judgment for
that of the Administrator but they are not absolved from
the minimal review well-settled in administrative law
and founded on constitutional obligations. The
limitations on judicial power in this area are well-known
and we are confined to an examination of the material
merely to see whether a rational mind may conceivably
be satisfied that the compulsory retirement of the officer
concerned is necessary in public interest.
19. In Baikuntha Nath Das v. Chief District Medical
Officer; (1992) 2 SCC 299, where Their Lordships in para-8
observed as follows:
"8. It is evident that the latter half of the proviso
which empowers the government to retire a government
servant in public interest after he completes 30 years of
13
qualifying service or after attaining the age of 50 years
is in pari materia with the Fundamental Rule 56 (j).
xxx xxx xxx
34. The following principles emerge from the above
discussion:
(i) An order of compulsory retirement is not a
punishment. It implies no stigma nor any suggestion of
misbehaviour.
(ii) The order has to be passed by the government on
forming the opinion that it is in the public interest to
retire a government servant compulsorily. The order is
passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the
context of an order of compulsory retirement. This does
not mean that judicial scrutiny is excluded altogether.
While the High Court or this Court would not examine
the matter as an appellate court, they may interfere if
they are satisfied that the order is passed (a) mala fide
or (b) that it is based on no evidence or (c) that it is
arbitrary - in the sense that no reasonable person would
form the requisite opinion on the given material; in
short, if it is found to be a perverse order.
(iv) The government (or the Review Committee, as the
case may be) shall have to consider the entire record of
service before taking a decision in the matter - of
course attaching more importance to record of and
performance during the later years. The record to be so
considered would naturally include the entries in the
confidential records/character rolls, both favourable and
adverse. If a government servant is promoted to a
higher post notwithstanding the adverse remarks, such
remarks lose their sting, more so, if the promotion is
based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be
quashed by a Court merely on the showing that while
passing it uncommunicated adverse remarks were also
taken into consideration. That circumstance by itself
cannot be a basis for interference.
Interference is permissible only on the grounds
mentioned in (iii) above. This aspect has been discussed
in paras 30 to 32 above."
14
20. In S. Ramachandra Raju v. State of Orissa; 1994
Supp. (3) SCC 424 where Their Lordships at para-9 observed
as follows:
"9. ............ The entire service record or
character rolls or confidential reports maintained
would furnish the back drop material for
consideration by the Government or the Review
Committee or the appropriate authority. On
consideration of the totality of the facts and
circumstances alone, the government should form
the opinion that the government officer needs to be
compulsorily retired from service. Therefore, the
entire service record more particular the latest,
would form the foundation for the opinion and
furnish the base to exercise the power under the
relevant rule to compulsorily retire a government
officer. When an officer reaching the age of
compulsory retirement, as was pointed out by this
Court, he could neither seek alternative
appointment nor meet the family burdens with the
pension or other benefits he gets and thereby he
would be subjected to great hardship and family
would be greatly affected. Therefore before
exercising the power, the competent appropriate
authority must weigh pros and cons and balance the
public interest as against the individual interest. On
total evaluation of the entire record of service if the
government or the governmental authority forms
the opinion that in the public interest the officer
needs to be retired compulsorily, the court may not
interfere with the exercise of such bona fide
exercise of power but the court has power and duty
to exercise the power of judicial review not as a
court of appeal but in its exercise of judicial review
to consider whether the power has been properly
exercised or is arbitrary or vitiated either by mala
fide or actuated by extraneous consideration or
arbitrary in retiring the government officer
compulsorily from service".
21. In Pyare Mohan Lal v. State of Jharkhand;
(2010) 10 SCC 693 where Their Lordships expounded the
15
theory of compulsory retirement in a very lucid manner. Their
Lordships have taken note of most of the decisions including the
decision of Baikuntha Nath Das (supra) and observed about
the washed-off theory. In paragraphs 19, 20, 21, 22 and 24 of
the above judgment Their Lordships observed as follows:-
"19. In State of Punjab Vs. Dewan Chuni
Lal, AIR 1970 SC 2086, a two-Judge Bench of this
Court held that adverse entries regarding the
dishonesty and inefficiency of the government
employee in his ACRs have to be ignored if,
subsequent to recording of the same, he had been
allowed to cross the efficiency bar, as it would mean
that while permitting him to cross the efficiency bar
such entries had been considered and were not
found of serious nature for the purpose of crossing
the efficiency bar.
20. Similarly, a two-Judge Bench of this Court
in Baidyanath Mahapatra Vs. State of Orissa,
AIR 1989 SC 2218, had taken a similar view on
the issue observing that adverse entries awarded to
the employee in the remote past lost significance in
view of the fact that he had subsequently been
promoted to the higher post, for the reason that
while considering the case for promotion he had
been found to possess eligibility and suitability and
if such entry did not reflect deficiency in his work
and conduct for the purpose of promotion, it would
be difficult to comprehend how such an adverse
entry could be pressed into service for retiring him
compulsorily. When a government servant is
promoted to higher post on the basis of merit and
selection, adverse entries if any contained in his
service record lose their significance and remain on
record as part of past history. This view has been
adopted by this Court in Baikuntha Nath Das,
(1992) 2 SCC 299.
21. However, a three-Judge Bench of this
Court in State of Orissa V. Ram Chandra
Das;(1996) 5 SCC 331 had taken a different view
16
as it had been held therein that such entries still
remain part of the record for overall consideration
to retire a government servant compulsorily. The
object always is public interest. Therefore, such
entries do not lose significance, even if the
employee has subsequently been promoted. The
Court held as under:(SCC pp.333-34, para-7)
"7. ........Merely because a promotion has been
given even after adverse entries were made, cannot
be a ground to note that compulsory retirement of
the government servant could not be ordered. The
evidence does not become inadmissible or irrelevant
as opined by the Tribunal. What would be relevant
is whether upon that state of record as a reasonable
prudent man would the Government or competent
officer reach that decision. We find that selfsame
material after promotion may not be taken into
consideration only to deny him further promotion, if
any. But that material undoubtedly would be
available to the Government to consider the overall
expediency or necessity to continue the government
servant in service after he attained the required
length of service or qualified period of service for
pension." (emphasis added)
This judgment has been approved and followed by
this court in State of Gujarat V. Umedbhai M.
Patel, AIR 2001 SC 1109, emphasising that the
"entire record" of the government servant is to be
examined."
"22. In Vijay Kumar Jain, (2002) 3 SCC 641, this
Court held that the vigour or sting of an entry does
not get wiped out, particularly, while considering the
case of employee for giving him compulsory
retirement, as it requires the examination of the
entire service records, including character rolls and
confidential reports. `Vigour or sting of an adverse
entry is not wiped out' merely it relates to the
remote past. There may be a single adverse entry of
integrity which may be sufficient to compulsorily
retire the government servant.
24. In view of the above, the law can be
summarised to state that in case there is a conflict
between two or more judgments of this court, the
judgment of the larger Bench is to be followed. More
so, the washed off theory does not have universal
17
application. It may have relevance while considering
the case of government servant for further
promotion but not in a case where the employee is
being assessed by the Reviewing Authority to
determine whether he is fit to be retained in service
or requires to be given compulsory retirement, as
the Committee is to assess his suitability taking into
consideration his "entire service record".
22. The aforesaid decision is well followed in Rajasthan
State Road Transport Corporation and others v. Babu Lal
Jangir; (2013) 10 SCC 551, where Their Lordships observed at
para-24 in the following manner:
"24. ........ As per the law laid down in the
aforesaid judgments, it is clear that entire service
record is relevant for deciding as to whether the
government servant needs to be eased out
prematurely. Of course, at the same time,
subsequent record is also relevant, and immediate
past record, preceding the date on which decision is
to be taken would be of more value, qualitatively.
What is to be examined is the "overall performance"
on the basis of "entire service record" to come to
the conclusion as to whether the employee
concerned has become a deadwood and it is in
public interest to retire him compulsorily. The
Authority must consider and examine the overall
effect of the entries of the officer concerned and not
an isolated entry, as it may well be in some cases
that in spite of satisfactory performance, the
Authority may desire to compulsorily retire an
employee in public interest, as in the opinion of the
said authority, the post has to be manned by a more
efficient and dynamic person and if there is
sufficient material on record to show that the
employee "rendered himself a liability to the
institution", there is no occasion for the Court to
interfere in the exercise of its limited power of
judicial review."
23. With due regard to the aforesaid decisions, it is trite
in law that the adverse entries for promotion if not considered
18
and promotion has been already made overcoming such adverse
entry, that previous adverse entry is said to be washed-off for
further promotion. But such washed-off theory will have no
universal application when a person is considered to continue in
service or not for the public interest. In that case the entire
service record has to be taken into consideration whether past or
recent have no any relevance. Even if the old adverse entry has
been ignored while giving promotion, the same can be
considered or assessed while the service of a Government
servant is considered for compulsory retirement under Rule 71
(a) but due regard must have to be given in all respect
particularly with respect to integrity without which allowing a
public servant to continue in service is dangerous or menace to
the society as well as hurdle for reposing confidence on the
organization. It is needless to say that judiciary being the third
column of the Constitution is the bedrock of development of the
country and it should carry on tremendous faith of people at
large at any cost. The integrity and the competency are both
sides of a coin that every Judicial officer has to possess for
continuance in service. At no stretch of imagination integrity or
competency of a Judicial Officer can be compromised at any
event. So, whole career has to be considered with subjective
19
satisfaction by the Review Committee or the Full Court and by
the Government.
24. Now adverting to the fact of the case, first of all it
must be made clear that there is no disciplinary proceeding ever
started against the petitioner. The allegation file is also gone
through. While the petitioner was J.M.F.C., Koraput during the
year 1981, there was an allegation against him about taking
bribe but after enquiry same is found to be false and baseless,
the matter was closed. Similarly another allegation from the
Koraput Bar during 1983 was made against the petitioner and it
was sent for confidential enquiry and on enquiry, the concerned
District Judge reported that there was no basis to the allegation
made against the petitioner. Hence, these allegations were
closed having not being found any truth in it.
25. Now the ACRs of the petitioner should be considered
to find out whether it is a fit case where rightly decision has
been taken by the opposite parties to award him compulsory
retirement.
Year-1977
4. Knowledge of law and Judicial Good
capacity
5. Is he industrious and has he Yes
coped effectually with heavy
work?
6. Remarks about his promptness in Prompt
the disposal of cases
7. Remarks about supervision of the Good
20
distribution of business among
and his control over the
subordinate courts and his
administrative ability
9. Remarks about reputation of Nothing was heard
integrity and impartiality against his integrity &
impartiality
12. Net Result.(Outstanding, very Good
good, Good, Average, Poor)
(Considered by Court)
Year-1978 (By District Judge, Reviewing Officer)
4. Knowledge of law and Judicial Good
capacity
5. Is he industrious and has he Yes
coped effectually with heavy
work?
6. Remarks about his promptness in Quite prompt
the disposal of cases.
7. Remarks about supervision of the Good
distribution of business among
and his control over the
Subordinate Courts and his
administrative ability.
9. Remarks about reputation of Nothing was heard
integrity and impartiality. against his honesty &
integrity.
12. Net Result.(Outstanding, Very Good
good, Good, Average, Poor)
(Considered by Court)
Year-1979 (By District Judge, Reviewing Officer)
4. Knowledge of law and Judicial Good
capacity
5. Is he industrious and has he Industrious. Coped
coped effectually with heavy effectually with heavy
work? work.
6. Remarks about his promptness in Prompt
the disposal of cases.
7. Remarks about supervision of the Good
distribution of business among
and his control over the
subordinate courts and his
administrative ability.
9. Remarks about reputation of Good
integrity and impartiality
21
12. Net Result.(Outstanding, very Good
good, Good, Average, Poor)
(Considered by Court)
Year-1980 (Part-I)
4. Knowledge of law and Judicial Good
capacity
5. Is he industrious and has he Industrious and coped
coped effectually with heavy with heavy work
work? effectually.
6. Remarks about his promptness in Prompt in disposal of
the disposal of cases. cases.
7. Remarks about supervision of the Good
distribution of business among
and his control over the
subordinate courts and his
administrative ability.
9. Remarks about reputation of Good
integrity and impartiality.
12. Net Result.(Outstanding, very Good
good, Good, Average, Poor)
Year-1980 (Part-II)
4. Knowledge of law and Judicial Average
capacity.
5. Is he industrious and has he He does not appear to be
coped effectually with heavy industrious nor copes up
work? with heavy work.
6. Remarks about his promptness in He is not prompt in
the disposal of cases. disposal cases. Mainly
old cases on his file are
lying undisposed of.
7. Remarks about supervision of the Lacks control over his
distribution of business among subordinates.
and his control over the
subordinate courts and his
administrative ability.
9. Remarks about reputation of Nothing much has been
integrity and impartiality. heard against his
reputation, integrity and
impartiality.
12. Net Result.(Outstanding, Very Average
good, Good, Average, Poor)
(Adverse entry communicated to the Officer after being considered by
the Court).
22
Year-1980 (For the whole year by the District Judge)
4. Knowledge of law and Judicial Good
capacity
5. Is he industrious and has he Industrious. Coped
coped effectually with heavy effectually with heavy
work? work.
6. Remarks about his promptness in Prompt.
the disposal of cases.
7. Remarks about supervision of the Average
distribution of business among
and his control over the
subordinate courts and his
administrative ability.
9. Remarks about reputation of Satisfactory
integrity and impartiality
10. Behaviour towards members of Does not appear to be
the Bar and the public. cordial.
12. Net Result.(Outstanding, Very Average
good, Good, Average, Poor)
(It is also considered and adverse at Sl. No.10 was communicated to
the Officer by the Court).
Year-1981 (Entire year)
4. Knowledge of law and Judicial Average
capacity
5. Is he industrious and has he Has become industrious
coped effectually with heavy and coped effectually
work? with heavy work.
6. Remarks about his promptness in He has become prompt
the disposal of cases. in disposal of cases.
7. Remarks about supervision of the He should exercise better
distribution of business among control over his
and his control over the subordinates.
subordinate courts and his
administrative ability.
9. Remarks about reputation of Nothing adverse has
integrity and impartiality been heard.
12. Net Result.(Outstanding, very Good
good, Good, Average, Poor)
(Court considered & communicated adverse remarks at Sl. No.7 to the
Officer)
Year-1982
4. Knowledge of law and Judicial Average
capacity.
5. Is he industrious and has he Yes
23
coped effectually with heavy
work?
6. Remarks about his promptness in His disposal was above
the disposal of cases. the yard stick.
7. Remarks about supervision of the He exercised effective
distribution of business among control over his office.
and his control over the
subordinate courts and his
administrative ability.
9. Remarks about reputation of Nothing adverse was
integrity and impartiality heard.
12. Net Result.(Outstanding, very Good
good, Good, Average, Poor)
(Considered by Court)
Year-1983 (From 1.1.1983 to 10.6.1983)
4. Knowledge of law and Judicial Average
capacity.
5. Is he industrious and has he Yes and he has coped up.
coped effectually with heavy
work?
6. Remarks about his promptness in Good
the disposal of cases
7. Remarks about supervision of the Needs further
distribution of business among improvement.
and his control over the
subordinate courts and his
administrative ability.
9. Remarks about reputation of Good
integrity and impartiality.
12. Net Result.(Outstanding, Very Good
good, Good, Average, Poor)
Year-1983 (From 20.6.1983 to 31.12.1983)
4. Knowledge of law and Judicial Good
capacity.
5. Is he industrious and has he Industrious. Coped with
coped effectually with heavy heavy work effectually.
work?
6. Remarks about his promptness in Prompt in disposal of
the disposal of cases. cases.
7. Remarks about supervision of the Average - (He should
distribution of business among improve in administrative
and his control over the ability). (Ignored by
subordinate courts and his Court)
administrative ability.
9. Remarks about reputation of Good
24
integrity and impartiality.
12. Net Result.(Outstanding, very Very Good
good, Good, Average, Poor)
(Considered by Court)
Year-1984
4. Knowledge of law and Judicial Good
capacity.
5. Is he industrious and has he Industrious and coped
coped effectually with heavy with heavy work
work? effectually.
6. Remarks about his promptness in Prompt in disposal of
the disposal of cases. cases.
7. Remarks about supervision of the Good
distribution of business among
and his control over the
subordinate courts and his
administrative ability.
9. Remarks about reputation of Good
integrity and impartiality.
12. Net Result.(Outstanding, very Good
good, Good, Average, Poor)
(Considered by Court)
Year-1985 (From 1.1.1985 to 7.6.1985)
4. Knowledge of law and judicial Poor knowledge of law.
capacity. Takes cognizance
u/s.190(1)© Cr.P.C.
without exercising judl.
discretion and without
giving opportunity to the
accd. of being heard.
5. Is he industrious and has be Industrious.
coped effectually with heavy
work?
6. Remarks about his promptness in Average
the disposal of cases.
7. Remarks about supervision of the Not effective
distribution of business among
and his control over the
subordinate courts and his
administrative ability.
9. Remarks about reputation of Doubtful
integrity and impartiality
12. Net Result.(Outstanding, very Average
good, Good, Average, Poor)
(Court considered as "Poor")
25
Year-1985 (From 10.6.1985 to 31.12.1985)
4. Knowledge of law and Judicial Satisfactory
capacity.
5. Is he industrious and has he Yes
coped effectually with heavy
work?
6. Remarks about his promptness in Good
the disposal of cases
7. Remarks about supervision of the Satisfactory
distribution of business among
and his control over the
subordinate courts and his
administrative ability.
9. Remarks about reputation of Good (Reviewing Officer
integrity and impartiality. observed he is sincere
and honest)
12. Net Result.(Outstanding, Very Good
good, Good, Average, Poor)
(Considered by Court)
Year-1986
4. Knowledge of law and Judicial Satisfactory
capacity.
5. Is he industrious and has he Yes
coped effectually with heavy
work?
6. Remarks about his promptness in He is prompt in disposal
the disposal of cases. of cases.
7. Remarks about supervision of the Satisfactory
distribution of business among
and his control over the
subordinate courts and his
administrative ability.
9. Remarks about reputation of Nothing is heard against
integrity and impartiality. his reputation and
integrity. He is impartial.
12. Net Result.(Outstanding, very Good
good, Good, Average, Poor)
(No ACR received for 1987) (Considered by Court)
Year-1988 and 1989 (From 7.3.1988 to 27.3.1989)
4. Knowledge of law and judicial Sound in his knowledge
capacity. of law on criminal side
but needs improvement
on the civil side. His
judicial capacity is quite
good.
26
5. Is he industrious and has be Moderately industrious
coped effectually with heavy because his out-turn on
work? criminal side for 1st and
2nd quarters, 1988 was
below the prescribed
yard stick. However,
improvement was
marked in his outturn
during 3rd and 4th
quarters.
6. Remarks about his promptness in Moderately prompt in
the disposal of cases. disposal of cases.
7. Remarks about supervision of the Administrative ability was
distribution of business among good.
and his control over the
subordinate courts and his
administrative ability.
9. Remarks about reputation of Unquestionable
integrity and impartiality
12. Net Result.(Outstanding, very An average officer.
good, Good, Average, Poor)
(Considered by Court)
Year-1989 (From 10.4.1989 to 31.12.1989)
4. Knowledge of law and judicial On Civil side poor. On
capacity. Criminal side not up to
the mark.
5. Is he industrious and has he Not up to the mark.
coped effectually with heavy
work?
6. Remarks about his promptness in Not up to the mark.
the disposal of cases.
7. Remarks about supervision of the Ineffective
distribution of business among
and his control over the
subordinate courts and his
administrative ability.
9. Remarks about reputation of Nothing adverse heard
integrity and impartiality.
12. Net Result.(Outstanding, very An Average Officer
good, Good, Average, Poor)
(Court considered same)
Year-1990 (1.1.1990 to 16.8.1990)
4. Knowledge of law and judicial Needs improvement
capacity.
27
5. Is he industrious and has he coped Yes
effectually with heavy work?
6. Remarks about his promptness in Fair
the disposal of cases.
7. Remarks about supervision of the Fair
distribution of business among and
his control over the subordinate
courts and his administrative
ability.
9. Remarks about reputation of A major section of the
integrity and impartiality. Bar has lost faith-
unexpected result in
some cases noticed.
11. General reputation Not good.
12. Net Result.(Outstanding, very Average
good, Good, Average, Poor)
(Considered by Court)
Year-1990 (22.8.1990 to 31.12.1990)
4. Knowledge of law and judicial Needs improvement.
capacity.
5. Is he industrious and has he coped Yes
effectually with heavy work?
6. Remarks about his promptness in He has not entrusted
the disposal of cases. with any case work.
7. Remarks about supervision of the Average
distribution of business among and
his control over the subordinate
courts and his administrative
ability
9. Remarks about reputation of Good
integrity and impartiality.
12. Net Result.(Outstanding, Very Average
good, Good, Average, Poor)
(Considered by Court)
Year-1991
4. Knowledge of law and Judicial He has not given any
capacity. judicial work.
5. Is he industrious and has he coped Yes
effectually with heavy work?
6. Remarks about his promptness in No judicial work is
the disposal of cases. entrusted.
7. Remarks about supervision of the Good
distribution of business among and
his control over the subordinate
courts and his administrative
ability.
28
9. Remarks about reputation of Good
integrity and impartiality.
12. Net Result.(Outstanding, very Average
good, Good, Average, Poor)
Year-1992
4. Knowledge of law and Judicial He is well conversant
capacity. with rules and
regulations as Registrar.
5. Is he industrious and has he coped Yes
effectually with heavy work?
6. Remarks about his promptness in Does not arise
the disposal of cases.
7. Remarks about supervision of the Very good
distribution of business among and
his control over the subordinate
courts and his administrative
ability.
9. Remarks about reputation of Very good
integrity and impartiality
12. Net Result.(Outstanding, very Very good
good, Good, Average, Poor)
Year-1993
4. Knowledge of law and Judicial He is well conversant
capacity. with rules and
regulations as
Registrar.
5. Is he industrious and has he coped Yes
effectually with heavy work?
6. Remarks about his promptness in Does not arise
the disposal of cases.
7. Remarks about supervision of the Good
distribution of business among and
his control over the subordinate
courts and his administrative ability
9. Remarks about reputation of Good
integrity and impartiality.
12. Net Result.(Outstanding, very Good
good, Good, Average, Poor)
Year-1993 (Part-II)
4. Knowledge of law and Judicial Good
capacity.
5. Is he industrious and has he coped Yes
effectually with heavy work?
29
6. Remarks about his promptness in He is prompt in
the disposal of cases. disposal of cases.
7. Remarks about supervision of the His control of office and
distribution of business among and subordinates is good.
his control over the subordinate
courts and his administrative
ability.
9. Remarks about reputation of He is impartial
integrity and impartiality.
12. Net Result.(Outstanding, very Good
good, Good, Average, Poor)
Year-1994
4. Knowledge of law and Judicial He has good knowledge
capacity. in law.
5. Is he industrious and has he coped He is a hard worker and
effectually with heavy work? coped with heavy work
suitably.
6. Remarks about his promptness in He is very prompt in
the disposal of cases. disposal of cases.
7. Remarks about supervision of the Behaves properly with
distribution of business among and all
his control over the subordinate
courts and his administrative
ability.
9. Remarks about reputation of Good
integrity and impartiality.
12. Net Result.(Outstanding, very Good
good, Good, Average, Poor)
(Court has not considered the ACR from 1991 to 1994)
26. From the conspectus of the facts relating to the CCRs
of the aforesaid years, it appears that the petitioner has got
adverse ACR in the second part of 1980 as given by the Chief
Judicial Magistrate as Reporting Officer. But for whole of the year
the District Judge who is the Reviewing Officer did not agree with
the opinion of the Chief Judicial Magistrate and rated the Officer
as average Officer. Similarly in 1981 for entire year he was
30
considered as good officer except the remark that he should
exercise control over subordinates. That apart, in the first part of
the year 1985 though the Chief Judicial Magistrate and the
District Judge gave him ACR as average Officer but against
Column No.9 they made adverse remarks about his reputation
and integrity as 'doubtful' and the Court also rated the Officer as
'Poor'. At the same time, in the second part of 1985, the Officer's
reputation, integrity and impartiality became good as given by
both Reporting and Reviewing Officer. Also the Reviewing Officer
has opined that the Officer is "sincere and honest". Same view
has also been accepted by the High Court being considered.
When in the second part he has got integrity good and net
remarks also good, the first part without having material
supporting the opinion as "integrity doubtful" cannot be
accepted. There is instruction issued by the High Court in
G.R.C.O. (Civil) Vol.II that when an Officer would be given
adverse remark as to his integrity and impartiality, the
concerned Reporting Officer or the Reviewing Officer must
explain the materials supporting such remark. Moreover, the
Reporting or Reviewing Officer must call for explanation from
such officer and explain whether it has got any basis. In this
case no such material appears to have been communicated to
31
the petitioner asking for his explanation so that adverse remark
could be recorded. However, due to 'Good' remark against this
reputation, integrity in the second part of 1985, the remark in
the first part is not given due importance.
27. Now it appears in 1989, the petitioner got CCR
recorded for the period from 10.4.1989 to 31.12.1989 where he
has got adverse remarks in knowledge of law, Judicial capacity,
his industriousness and promptness in disposal of cases, his
control over the subordinate courts and his administrative ability.
But so far reputation of integrity and impartiality is concerned,
same has been certified by the Reporting and Reviewing
authority. But at the same time for the period from 1.1.1990 to
16.8.1990, the petitioner has improved except the fact that he
needs further improvement in the knowledge of law and judicial
capacity. He has got overall rating as Average Officer. In the
same year he has got reputation of integrity with very
speculative remark from the Reviewing Officer that a major
section of the Bar had lost faith because of unexpected result in
some cases. The Reporting Officer has not annexed any
document showing the number of cases where the bar members
have alleged about unexpected result. Moreover, the unexpected
result in the cases cannot be taken as any adverse remark as to
32
integrity of the Officer without dealing on the issue as to whether
the Officer has got an extraneous motive behind it or any
extraneous obligation to pass such judgments. Therefore, such
remark is not considered to be the adverse except an
observation about his reputation. However, after going through
the ACR from 22.8.1990 to 31.12.1990 it appears that he has
good reputation, integrity and impartiality. Due to such good
remark about his reputation and integrity in the second part of
1990, the first part adverse entry is considered leniently against
the Officer. Not only this but also in the second part of 1990,
there is no adverse remark except recording that his knowledge
in law and judicial capacity needs further improvement. For the
second half year of 1990 and for the year 1991 the petitioner
was working as Registrar, Civil Court, Ganjam, which involves
purely administrative work and the ACR indicated that petitioner
was not entrusted judicial work. Hence, comment by the
Reporting Officer that petitioner needs improvement in
knowledge of law and judicial capacity was uncalled for, and for
the same only to note him overall "Average", appears to be result
of non-application of mind by the authorities, while in other
respects he has been rated 'good'. Such type of 'average' remark
when further improvement is required, assuming the same to be
33
justified, cannot be considered as adverse so as to disqualify him
for continuance in service. It may be noted here that the remark
"Needs improvement" as given in ACR is a diabolical remark
because the Reporting Officer while recording ACR should either
give the remark 'Poor' or 'Average' or 'Good' etc. From the year
1992 to 1994, the Officer is found having no adverse remark.
Rather he has been rated as Good Officer. The Review
Committee considered the Officer in 1995. The last four years of
ACR from 1991 to 1994 appears to have not been put up before
the Court for consideration before 1995. ACR of petitioner from
1991 to 1993 was put up on 18.1.1996 before the Standing
Committee of the Court and same have been accepted but ACR
for 1994 of petitioner has not been considered as yet. After
calling upon record from the Registry the said facts became
known to us. However, for last four years before review there is
improvement of the Officer and same have not been considered
by the Standing Committee of the Court before review was held
as appears from record.
28. The extract of the Review Committee is reproduced
below for reference:-
"6. Shri Indramani Sahu has earned adverse
comment with regard to his knowledge of law and
judicial capacity in the year 1991 from the District
Judge, Kalahandi. For the year 1990, the District
34
Judge, Ganjam, made an adverse entry not only
with regard to his knowledge of law and judicial
capacity, but also about his reputation of integrity
and impartiality even though he was rated as an
average officer. For the year 1989 his knowledge
of law and judicial capacity was rated as poor on
civil side and not up to the mark on criminal side.
He was found not to be industrious and about his
promptness in disposal of cases it was rated that
he is not up to the mark. In the year 1989, he
had received the comment from the District Judge
that he needs lot of improvement on the civil side.
Taking an overall view of the performances of this
officer, the Committee is of the opinion that he
should be required to retire in public interest
prematurely."
29. After going through same, it appears that the Review
Committee has taken into consideration the report of 1991 with
regard to knowledge of law and judicial capacity of petitioner but
as noted above, the Officer has no such adverse remark in 1991.
For the year 1989 the observation of the Review Committee that
the knowledge of law and judicial capacity of the Officer on Civil
side and Criminal side and promptness in disposal of cases are
related to the second part of 1989 although he has got no
adverse remark in these areas in the first part of 1989. Similarly
in 1990 although the Review Committee has observed that the
Officer has got bad reputation but again same relates to 1st part
of 1990 but in the second part of 1990 he has got good
reputation of integrity and impartiality. It appears that the
Review Committee has not considered the ACR of the petitioner
35
for whole of the year 1989 and 1990. As per procedural law, the
ACR of an employee is to be read for the whole of the year but
not in piecemeal. Apart from this, in view of decisions in
Baikuntha Nath Das (supra) and Pyare Mohan Lal (supra)
the Review Committee ought to have taken the ACR of the entire
years of service when the petitioner has got improvement in the
last four years and he has got no adverse integrity except the
first part of 1985 and first part of 1990, which are not based on
any documents to support the same as per procedural norms
issued by the Court. It is reiterated that the Review Committee
has not considered the entire years of service record of the
petitioner but took the decision basing on some adverse remark
for fraction of some years. Of course, it is for the Registry to
place the material before the Review Committee so as to come
to a conclusion. Apart from this, there is no disciplinary
proceeding initiated against the petitioner. Also there was no
allegation pending on the date of Review Committee meeting to
doubt the integrity or the capability of the petitioner. In view of
our observation above, we are of the view that the
recommendation of the High Court for compulsory retirement of
the Officer is not based on proper material and as such the
decision of the State Government retiring the petitioner
36
compulsorily is unlawful and arbitrary. The point is answered
accordingly.
CONCLUSION
30. In the writ petition it has been prayed to quash the
order of compulsory retirement as issued vide Annexure-6 with
consequential benefits. As the order of the Opposite Party No.1
in retiring the petitioner compulsorily at the age of 50 years is
unlawful and arbitrary, same should be quashed and the Court
do so. In the meantime since the Officer has already attained the
age of superannuation, the petitioner is deemed to have
continued in service in the cadre of Senior Civil Judge (Sub-
Judge) till the age of superannuation as per the Rule applicable
to him and accordingly we direct the opposite parties to extend
the consequential service benefit including financial benefit and
retiral benefits to petitioner in accordance with law.
The writ petition is disposed of accordingly. No costs.
..................................
Dr. D.P. Choudhury, J.
B.K. Nayak, J.I agree.
.................................. B.K. Nayak, J.
ORISSA HIGH COURT: CUTTACK Dated 24th October, 2017/Kar 37