Kerala High Court
High Court Of Kerala vs Rajiv Jayaraj on 1 April, 2019
Bench: A.M.Shaffique, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
MONDAY ,THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941
WA.No. 2795 of 2015
AGAINST THE JUDGMENT IN WPC 970/2014 of HIGH COURT OF
KERALA DATED 04-08-2015
APPELLANT/1ST RESPONDENT:
HIGH COURT OF KERALA
REPRESENTED BY THE REGISTRAR (SUBORDINATE
JUDICIARY), HIGH COURT OF KERALA, KOCHI-682031.
BY ADVS.
SRI.M.R.ANISON
SMT.ANNIE JACOB
SMT.K.P.GEETHA MANI
SMT.P.A.RINUSA
SMT.V.BHARGAVI (PANANGAD)
RESPONDENTS/PETITIONER AND RESPONDENTS 2 TO 4:
1 RAJIV JAYARAJ
S/O. R.J.MENON, PRINCIPAL MUNSIFF I, KOZHIKODE,
RESIDING PERMANENTLY AT LATHA REMAM, NEAR HEAD
POST OFFICE, PUTHUR ROAD, PALAKKAD, PIN-678001.
WA No.2795/15
-:2:-
2 K.HARIPAL
ENQUIRY COMMISSIONER AND SPECIAL JUDGE
(VIGILANCE), THRISSUR.
3 DISTRICT AND SESSIONS JUDGE KAVARATTI
UNION TERRITORY OF LAKSHADWEEP.
4 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF
KERALA, DEPARTMENT OF HOME, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
BY ADVS.
SRI.M.R.HARIRAJ
SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN
SMT.VINEETHA B.
SRI.MANU GOVIND
SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION
TERRITORY OF LAKSHADWEEP
G.P-SRI. K.M. HASHIR
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
20.03.2019, THE COURT ON 01.04.2019 DELIVERED THE
FOLLOWING:
WA No.2795/15
-:3:-
"C.R."
JUDGMENT
Shaffique, J.
The 1st respondent in WP(C) No.970/14 is the appellant herein. The writ petition is filed by the 1 st respondent herein inter alia seeking the following reliefs:-
"(i) To quash Exhibit P21, P25, P27, P30 and P33 by the issuance of a writ of certiorari or other appropriate writ, order or direction.
(ii) To declare that the petitioner is entitled to be granted second Assured Career Progression and other Career Advancements notwithstanding Exhibit P21.
(iii) To direct the respondents to grant the
petitioner second Assured Career Progression,
notwithstanding Exhibit P21 and to consider the
petitioner for grant of further promotions in his career without relying on Exhibit P21 and consequential orders, by the issuance of a writ of mandamus or other appropriate writ, order or direction."
2. The short facts of the case are as under:-
The petitioner joined service as a Munsiff-Magistrate on 21/10/2002. The issue which is the subject matter of the case happened while the petitioner was working as Munsiff-Magistrate at Androth effective from 2/06/2010. At the relevant time, 2 nd WA No.2795/15 -:4:- respondent was the District Judge. He requested for repatriation and he was posted as Judicial Magistrate of First Class Kunnamangalam as per order dated 15/5/2011. He submitted a self appraisal for the year 2010 on 25/6/2011 as Ext.P16. The 2 nd respondent called upon him to give details of contested case as per Ext.P17 dated 19/7/2011. Since he was already repatriated, he obtained the details from the Bench Clerk at Androth Court and he submitted his explanation as Ext.P20. It is submitted that later he was communicated by Ext.P21 letter dated 18/1/2012 annexing a photocopy of Part III of the confidential report containing certain adverse remarks against him by the 2 nd respondent. According to him, such remarks contained in Ext.P21 is illegal and factually unsustainable. He sought for an attested or authenticated copy as per Ext.P22 letter dated 28/2/2012 which was rejected as per Ext.P23 dated 9/3/2012. He again made a representation for unattested copy of Ext.P21 as per Ext.P24 dated 19/4/2012. He was personally heard by the learned High Court Judge having administrative jurisdiction over Lakshadweep on 10/10/2012. Nothing was heard in the matter for quite a long time. In the meantime, the first respondent/appellant by Ext.P25 WA No.2795/15 -:5:- letter dated 19/3/2013 asked him to sent a letter to the 2 nd respondent tendering apology for his conduct. By Ext.P26 dated 6/4/2013, he requested the appellant to point out the wrong committed by him in order to tender apology. Ext.P26 was rejected as per Ext.P27 letter dated 10/5/2013. After receiving Ext.P27, he submitted letter dated 25/5/2013 (Ext.P28) expressing apology which was also communicated to the appellant and a request was made, not to record the same in his service book. Ext.P29 is the letter dated 25/5/2013 sent to the Registrar (Subordinate Judiciary) of this Court. Subsequently, the decision of the Administrative Committee of the High Court was communicated to him by which it was indicated that the High Court had rejected Ext.P24. Ext.P30 is the said office memorandum dated 18/6/2013. He also sought for review of the said decision by another representation dated 9/7/2013 to the first respondent/appellant which also came to be rejected as per Ext.P33 dated 28/12/2013. He further submits that his contemporaries and juniors have been granted higher grade under 2nd ACP on 18/12/2013 as per order dated 2/1/2014 of the first respondent/appellant and he is overlooked only on account WA No.2795/15 -:6:- of the adverse remarks. He therefore sought for the reliefs aforesaid inter alia contending that the orders are illegal and ultra vires. Reference is also made in the petition to G.O.(P).No.344 dated 22/8/1966 and it is contended that it is mandatory for the officers to observe the subordinates under his control closely and provide guidance wherever necessary. In so far as no such guidance had been given by the 2nd respondent to the petitioner, and it is not recorded anywhere, the adverse entry is per se illegal. He also tried to explain the adverse remarks which had been indicated in Ext.P21, and had alleged malice against the Reporting Authority. It is further contended that the purpose of making adverse remarks in the confidential report of an officer is to give him a chance to improve his work and conduct. As far as the petitioner is concerned, his work did not warrant any adverse entry against him and therefore there is no reason why the adverse entries should be a blemish on his service record and deprive him of the future benefits including granting of higher grade.
3. In the counter affidavit filed by the first respondent, it is inter alia contended that though petitioner was relieved from WA No.2795/15 -:7:- duty on 17/05/2010 with a direction to report at Androth within 10 days, he joined only on 2/6/2010. The adverse remarks entered into by the 2nd respondent was considered by the Judge-in-charge as well as the Administrative Committee. They have considered the reason behind the adverse entries with respect to all relevant materials and the same was confirmed. It is only to get over the adverse entry made in the ACR that he was given two chances to render apology. It was an opportunity given to him by the Judge- in-charge so that no further action could be taken in the matter. On factual basis, the appellant had explained each and every point substantiating the entries in the ACR. It is submitted that the explanation given by the petitioner was placed before the Administrative Committee, but the Administrative Committee headed by the the Hon'ble the Chief Justice in its meeting held on 18/12/2013 resolved to reject the review petition and declined to grant the Assured Career Progression (ACP) II scales to the petitioner on account of the adverse remarks in his confidential report. It is submitted that such a decision was taken by the Committee as a corrective measure and to discourage repetition of such mistakes by the petitioner in future. The petitioner filed a WA No.2795/15 -:8:- reply affidavit explaining the factual matters involved in the allegations and reiterating the contentions urged by him.
4. Learned Single Judge having heard either of the parties observed that while preparing ACR of a judicial officer, the High Court should strictly abide by the provisions of para 7 of the Government Order dated 22/8/1966 which procedure has not been followed. Further, based on the judgments in State of UP v. Yamuna Shanker Misra and another [(1997) 4 SCC 7) and Bishwanath Prasad Singh v. State of Bihar [(2001) 2 SCC 305], it was observed that it is the duty of the reporting officer to ensure that a fair, objective, dispassionate and constructive comments are made while assessing the character, ability, integrity and responsibility of the officer. It is further observed that on a cursory glance through the report of the 2 nd respondent, it is clear that "the reporting officer has rather callously entered adverse remarks in the confidential records of the petitioner- remarks that touch upon the integrity of a judicial officer and made at a time when the judicial officer was still learning the ropes in the initial stages of his judicial career". It was further observed that there was no prior discussion with the petitioner on WA No.2795/15 -:9:- any conduct which was found objectionable by the 2 nd respondent and he was not given an opportunity to mend his ways before making any adverse entry. Learned Single Judge also found the adverse entry to be arbitrary, by holding that, while the 2 nd respondent did not doubt the integrity of the officer, it is observed that he is not an upright officer and his conduct at Androth was unbecoming of a judicial officer. Based on these findings, learned Single Judge proceeded to consider the decision taken by the Administrative Committee in the light of the apology tendered by the petitioner and observed that the decisions of the Administrative Committee do not indicate as to whether there was any enquiry as regards the procedure followed by the 2 nd respondent while making the adverse entries against the petitioner, and whether the procedure followed was in accordance with what is prescribed in the Government Order dated 22/8/1966 and in so far as the adverse remarks as well as the letter of apology sent by the petitioner remained as such, it was observed that the adverse entries recorded in the confidential report of the petitioner deserves to be expunged. Consequently, the decision of the Administrative Committee of WA No.2795/15 -:10:- High Court that rejected the representation of the petitioner against adverse entries and also the decision that denied him the benefit of the Assured Career Progression (ACP)-II scale are quashed and the adverse entry against the petitioner was expunged by following the procedure stipulated in paragraph 9 of the Government Order dated 22/8/1966. It was further observed that the petitioner shall be entitled to the benefits of the Assured Career Progression scheme and other consequential benefits in terms of the judgment.
5. Learned Senior counsel Smt.V.P.Seemandini appearing for the appellant/High Court submitted that the learned Single Judge proceeded on the basis that the Government Order of 1966 applies to the fact situation. It is contended that as far as judicial service is concerned, the said Government Order has no application at all. She argued that under Article 235 of the Constitution of India, the High Court has absolute control over subordinate judiciary and when the High Court exercises such power, to ensure a constant vigil on subordinate judiciary, the principle laid down by the learned Single Judge directing the 1966 Government Order to be applied is absolutely illegal and the said WA No.2795/15 -:11:- direction denudes the control of the High Court under Art.235 of the Constitution of India. She also placed reliance on the judgment in Rajendra Singh Verma v. Lt.Governor (NCT of Delhi) [2011 10 SCC 1], with specific reference to paragraphs 80, 81, 82 and 218, which reads as under:-
"80. The mandate of Article 235 of the Constitution is that the High Court has to maintain constant vigil on its subordinate judiciary as laid down by this Court in High Court of Judicature of Bombay v. Shirishkumar Rangrao Patil. In the said case, this Court has explained that the lymph nodes (cancerous cells) of corruption constantly keep creeping into the vital veins of the judiciary and need to stem it out by judicial surgery lies on the judiciary itself by its self-imposed or corrective measures or disciplinary action under the doctrine of control enshrined in Articles 235 and 124(6) of the Constitution, and therefore, it would be necessary that there should be constant vigil by the High Court concerned on its subordinate judiciary and self-introspection.
81. Judicial service is not a service in the sense of an employment as is commonly understood. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. There is no manner of doubt that the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility.
82. As explained by this Court in Chandra Singh v. State of WA No.2795/15 -:12:- Rajasthan, the power of compulsory retirement can be exercised at any time and that the power under Article 235 in this regard is not in any manner circumscribed by any rule or order. What is explained in the said decision by this Court is that Article 235 of the Constitution of India enables the High Court to assess the performance of any judicial officer at any time with a view to discipline the black sheep or weed out the dead wood, and this constitutional power of the High Court cannot be circumscribed by any rule or order."
"218. On a careful consideration of the entire material, it must be held that the evaluation made by the Committee/Full Court, forming their unanimous opinion, is neither so arbitrary nor capricious nor can be said to be so irrational, so as to shock the conscience of this Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions, a vast range of multiple factors play a vital and important role and no one factor should be allowed to be blown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. In the very nature of things, it would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court to judicial review except in an extraordinary case when the Court is convinced that some real injustice, which ought not to have taken place, has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court."
6. On the other hand learned counsel appearing for the WA No.2795/15 -:13:- petitioner/1st respondent herein Sri.Hariraj argued that when the learned Single Judge had based its judgment on sound principles of law, and when it is found that the adverse entries were made without complying with the procedure prescribed in the 1966 Government Order, which is applicable to all Government servants, there is no reason why the appellate jurisdiction should be exercised to set aside the directions which had already been issued, for common good and for all concerned. It is always desirable that before making entries in ACR, the officer be informed about the corrective measures to be taken to ensure transparency and also efficiency. He also placed reliance on paragraph 7 of the judgment in Yamuna Shanker Misra (supra) which is already extracted by the learned Single Judge in the judgment.
7. The first and foremost question to be considered is whether the 1966 Government Order applies to the fact situation. In Ground D of the writ petition, reference is made to Government Order dated 22/8/1966, and the same has been produced along with additional counter affidavit as Ext.R1(g). Primarily, the said Government Order has no application to the High Court unless WA No.2795/15 -:14:- the procedure is followed or adopted by the High Court. Even otherwise, the said Government Order has no application as far as judicial service is concerned. The judgment relied upon by the learned Single Judge i.e., Yamuna Shanker Misra (supra) is a judgment with reference to officers of the Government. However, in Bishwanath Prasad Singh (supra), the Apex Court observed that an assessment of quality and quantity of performance and progress of judicial officers should be an on-going process continued round the year and then to make a record in an objective manner of the impressions formulated by such assessment. The entry must reflect the result of an objective assessment coupled with an effort at guiding the judicial officers to secure an improvement in his performance wherever necessary and to admonish him with the object of removing for future, the shortcoming found; and expressing an appreciation with an idea of toning up and maintaining the imitable qualities by affectionately patting on the back of meritorious and deserving. It was therefore held that the entries having serious implications on the service of a person's career, has to be viewed with fairness, justness and objectivity in performing the WA No.2795/15 -:15:- inspections and making entries in the confidential rolls.
8. In fact, in Bishwanath Prasad Singh (supra), the Apex Court while considering the scope and effect of Article 235 of the Constitution of India, held at paragraph 31 as under:-
"31. Article 235 of the Constitution vests administrative and disciplinary control over the district judiciary including the subordinate judiciary in the High Court immunising them from the executive control of the State Government so as to protect judicial independence. Control over subordinate courts vested in the High Court is a trust and confidence reposed by the founding fathers of the Constitution in a high institution like the High Court. The trust has to be discharged with a great sense of responsibility. All the High Courts have framed rules dealing with executive and administrative business of the Court. There are administrative committees and Inspecting Judges in the High Court. Periodical inspections of subordinate courts have to be carried out regularly so as to keep a vigil and watch on the functioning of the subordinate judiciary, the importance and significance whereof needs no emphasis. xxxxx."
9. Further, in Rajendra Singh Verma (supra), it has been clearly indicated that opportunity of hearing is not necessary before adverse remarks are made, because the adverse remarks by itself will not constitute a penalty. Paragraph 148 is relevant, which reads as under:-
WA No.2795/15-:16:-
"148. The object of writing confidential reports and making entries therein is to give an opportunity to the public servant to improve excellence. Article 51-A(j) of the Constitution enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Therefore, the officer entrusted with the duty to write CR has a public responsibility and trust to write the CR objectively, fairly and dispassionately while giving, as accurately as possible the statement of facts on an overall assessment of performance of the subordinate officer. Opportunity of hearing is not necessary before adverse remarks because adverse remarks by themselves do not constitute a penalty. xxx"
10. In Beena Tiwari v. State of M.P (AIR 1988 SC 488), the Apex Court held that Rules framed by the State Government cannot interfere with the control vested in the High Court under Art.235 of the Constitution. It is also held in Gurjat R.M v. High Court of Gujarat [(1992) 4 SCC I0] that the said control extends to ministerial officers and servants on the establishment of the subordinate courts. In High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal [(1998) 3 SCC 72], it was held that the word "control" referred to under the Article is used in a comprehensive sense to include general superintendence of the working of subordinate courts, disciplinary control over the WA No.2795/15 -:17:- Presiding Officers of the subordinate courts; recommendation of imposition of punishment including suspension for the purposes of a disciplinary inquiry, transfer, confirmation and even promotion. In Baradakanta Mishra v. High Court of Orissa (AIR 1976 SC 1899) it was held that the control vested in the High Court is complete control, subject only to the power of the Governor in the matter of appointment, initial posting and promotion of District Judges. In State of Assam v. Kuseswar Saikia (AIR 1970 SC 1616) which was followed in Supreme Court Advocates on Record Association v. Union of India [(1993) 4 SCC 441], it was held that the exercise of power under Art.235 is not justiciable unless some other provision of Constitution has been violated.
11. The Confidential report is Ext.P21. On a perusal of Ext.P21, i.e., Part III, which is assessment of the reporting authority, we cannot agree with the learned Single Judge that it was recorded in a callous manner. It is submitted on behalf of the 1st respondent that the learned Single Judge had occasion to see the entire file. But, nothing is reflected in the judgment to indicate as to what were the files perused by the learned Single WA No.2795/15 -:18:- Judge. When specific details are given relating to the assessment made by the reporting authority, while sitting in writ jurisdiction, we cannot brush aside such observations as callous, unless a detailed examination of the facts and materials relied upon by the reporting officer are verified and assessed, which is not at all warranted in a petition under Art.226 of the Constitution of India. An officer who is appointed as a Munsiff-Magistrate has to work in a cordial atmosphere and should not show intolerance either before the staff, the litigant public, to lawyers and to other members of service. Judicial Officer is expected to behave properly with dignity and should perform his functions with integrity and honesty. It is the wholesome feature of erudition, honesty, integrity and good behaviour that makes a judicial officer to continue as such to render justice to the public at large. When the reporting officer after making his own assessment about the officer makes certain entries in the ACR, which are factually correct, or rather it is not found to be factually incorrect by the learned Single Judge, the adverse entries in the ACR cannot be expunged for that reason.
12. Equally unsustainable is the finding that the adverse WA No.2795/15 -:19:- entry is arbitrary. As already mentioned, the Reporting Officer had given sufficient data in order to indicate the discrepancies which had been noticed by him with reference to the submissions made by the concerned officer. The Reporting Officer has also indicated that his relationship with the officer was not pleasant, still, the reporting officer had opined that there is no instance to doubt his integrity. It is from the conduct of the officer while he was working at Androth that an opinion has been formed that he was not upright and the grading was indicated as "below average". As far as the Reporting Officer is concerned, he is under obligation to provide his opinion about the officer concerned and when the Reporting Officer had given sufficient reasons for forming such an opinion, it cannot be brushed aside by stating that the said opinion is arbitrary.
13. The learned Single Judge also interfered with the finding of the Administrative Committee observing that the decision of the Administrative Committee does not indicate as to whether there was any enquiry regarding the procedure followed by the 2nd respondent while making adverse entries against the petitioner and whether the procedure followed was in accordance WA No.2795/15 -:20:- with that prescribed in the Government Order dated 22/8/1966. We have already held that the Government Order dated 22/8/1966 has no application as far as High Court is concerned and the non compliance of such a Government Order can never be a reason for discarding the decision of the Administrative Committee.
14. However having regard to the factual aspects available in the case, we find that the High Court Judge-in-charge of the concerned Court after considering the adverse remarks against the officer felt that the said adverse remark should not stand in the way of the officer in any manner and has requested him to tender an apology. Though the officer still felt that there was nothing to apologise as he did not do any such acts warranting an apology, still he tendered unconditional apology. Going by the nature of adverse entry in the ACR noted by the reporting officer which basically was intended to ensure that a better performance in judicial work as well as a decent and proper behaviour as a judicial officer is expected of him, indulgence was shown by the Judge-in-charge giving him an opportunity to apologise, which though belatedly he had WA No.2795/15 -:21:- apologised, would show his inclination to comply with the judicial functions and also to ensure proper behaviour pattern as is expected of a judicial officer. Even in Bishwanath Prasad Singh (supra), the Apex Court had observed that "an annual entry is not an instrument to be wielded like a teachers' cane or to be cracked like a wip. The High Court has to act and guide the subordinate officers like a guardian or elder in the judicial family." Therefore, taking into consideration the factual aspects involved in the matter, it would have been appropriate for the High Court to have accepted the apology tendered by the officer and given him the benefits which he is entitled for. In this case, the adverse entry was not intended to create any harm to the officer. But it was only intended to enable him to improve himself as a judicial officer and as a person, who does his judicial work properly. Therefore, the Administrative Committee of the High Court ought to have taken into consideration his apology and given him an opportunity to improve as a judicial officer of the State rather than denying him the benefits which his contemporaries enjoyed. However, the aforesaid direction shall not preclude the High Court from taking any decision based on WA No.2795/15 -:22:- further evaluation of the officer based on confidential reports or other material made available to the High Court.
In the light of the aforesaid discussion, this writ appeal is allowed, the judgment of the learned Single Judge is hereby set aside and the writ petition is disposed of as under:-
(i) The adverse entries in the ACR of the petitioner shall not stand in the way of the petitioner getting future benefits as a member of the judicial service including Assured Career Progression (ACP).
(ii) The decision of the High Court to that extent stands quashed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
ASHOK MENON
Rp //True Copy// JUDGE
PS to Judge