Allahabad High Court
Jamaluddin Khan vs State Of U.P. & Another on 18 February, 2011
Bench: Sunil Ambwani, Dilip Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 29 Case :- SPECIAL APPEAL No. - 1559 of 2006 Petitioner :- Jamaluddin Khan Respondent :- State Of U.P. & Another Petitioner Counsel :- Dinesh Rai Respondent Counsel :- C.S.C. Hon'ble Sunil Ambwani,J.
Hon'ble Dilip Gupta,J.
We have heard Sri U.S. Tiwari, in support of the review application.
The Special Appeal was dismissed by judgment dated 8.12.2006, on the ground that the screening committee constituted by the District Judge had taken into consideration the entire service record of the petitioner, in arriving at the conclusion, to compulsorily retire the petitioner. The court examined all the entries in the Annual Confidential Record of the petitioner from 1979 to the year 2003, and found that the screening committee did not commit any mistake. The District Judge was justified in passing the order, to compulsorily retire the petitioner.
In the review application filed on 8.11.2010, four years after the judgment in Special Appeal, reliance is placed upon two judgment of the Court namely in Special Appeal No. 1223 of 2006 (Dwarika Singh Vs. State of U.P. and others) decided on 21.4.2010, and Special Appeal No. 1558 of 2006 (Awadh Bihari Tiwari Vs. State of U.P. and another) 14.7.2010. In both these judgments, the Court relied upon the decision taken by the Administrative Judge, allowing the representation of one of the employees, who was also compulsorily retired in the same recommendations of the screening committee in the same Judgeship. The then Administrative Judge in his decision observed that:-
"In the matter of compulsory retirement, the screening committee should have been constituted comprising some senior most judicial officers, but the District constituted the screening committee consisting of an Additional District and a Civil Judge (Junior Division). It also does not appeal to reason as to why senior most officers were not inducted in the screening committee. A Civil Judge (Junior Division) who has no administrative experience, not well versed with Government Orders etc may fall in the line of the District Judge and might have not gone against wishes of the District Judge, otherwise, such a glaring error would not have been committed."
Under the Allahabad High Court Rules, 1952, the business of the Administrative Judge is enumerated in Chapter -III, Rule 4 (B), and which provides as follows:
4. Allocation of administrative work, - The following shall be the allocation of executive and administrative work between the Chief Justice, the Administrative Judge, the Administrative Committee and the Full Court:
(A) Matters for the Chief Justice ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
(B) Matters for Administrative Judges
1. Review of judicial work of Subordinate Courts, Tribunals, District Consumer Forums and all other Special Courts and control of their working including inspection thereof, to record entries in the character rolls of the officers posted in the division assigned to the Administrative Judge.
2. Perusal of returns, calendars, evaluation of inspection reports made by the Presiding Officers in respect of their own offices, audit reports received form those Courts, Tribunals etc., and to make orders thereon.
3. Any adverse remarks or strictures made by an Administrative Judge about judicial work, conduct or integrity of any officer under his charge will be communicated to the officer concerned, who may make his representations, if any, within a month and the same shall be placed before the Administrative Committee for consideration and decision.
4. Grant of earned leave to officers posted in the sessions division under the charge of the Administrative Judge.
5. Grant of casual leave (including special casual leave) and permission to leave near a quarters to the District and Sessions Judge, Presiding Officers of the Tribunals and Special Courts etc. Howsoever designated.
6. Disposal of appeals against orders of punishment imposed on and representations etc of the employees of the Subordinate Courts."
The Administrative Judges, in making orders on the matters enumerated above, do not exercise judicial powers. They do not have powers to set aside the orders of compulsory retirement of the employees of the subordinate court. The review of judicial work, perusal of returns, evaluation of inspection reports, considerations and decisions on the adverse remarks given by the District Judge, grant of earned leave and casual leave, and disposal of appeals against the orders of punishment, do not authorize the Administrative Judges, to sit over, to decide and reverse the decision in the matter of compulsory retirement.
The orders of compulsory retirement are not passed by way of punishment. The object to compulsorily retire a public servant, is to remove the dead wood under Rule 56 (c) of the U.P. Financial Handbook, Volume II, Part-II to IV.
The order of Hon'ble D.V. Sharma, J - the then Administrative Judge, in setting aside the order of compulsory retirement, was thus without jurisdiction. The same however cannot be said to be true about the orders in Special Appeal No. 1223 of 2006 (Dwarika Singh Vs. State of U.P. and others) decided on 21.4.2010, and Special Appeal No. 1558 of 2006 (Awadh Bihari Tiwari Vs. State of U.P. and another) 14.7.2010.
Ordinarily, a review application cannot be filed on the ground that in the later judgments, the High Court has taken a different view. The review has to be confined to the errors apparent on the record in the judgment. The view taken by the court on any question of fact or law in the later decisions cannot be treated as an error apparent on the record in the judgment.
We further find that in the judgment dated 8.12.2006 sought to be reviewed, Hon'ble Dr. B.S. Chauhan, J as then was, and one of us (Hon'ble Dilip Gupta, J) had observed as follows:-
"The learned Judge noticed that on 27th October, 1979 a fine was imposed on the petitioner, on 23rd August, 1980 and 15th June, 1981 warning was extended, on 3rd July, 1983 and 2nd August, 1983 fine was imposed, on 27th June, 1984 adverse entry was awarded for the year 1983-84, on 5th June, 1985 warning was given, on 19th August, 1985 directives were issued for making deduction from his service, on 27th September, 1985 fine was imposed, on 21st March, 1986 warning was awarded, censure entry was awarded for the year 1985-96, 1986-87 and 1987-88, on 19th April, 1999 the suspension order was revoked order on an undertaking furnished by the petitioner and on 15th July, 2002 a penalty of Rs.100/- was imposed upon the petitioner. It was also noticed by the learned Judge that an enquiry into his conduct was pending in the year 2003. The learned Judge also noticed that the Screening Committee, after taking into consideration the aforesaid facts, was of the opinion that there was no chance of improvement in the working of the petitioner and, therefore, in public interest, recommended for compulsory retirement of the petitioner. The appointing authority who was the District Judge, Ballia then passed the order for compulsory retirement of the petitioner.
We have heard learned counsel for the appellant and Sri K.R. Sirohi, learned counsel appearing for the respondents.
Under the provisions of Fundamental Rule 56(C) of the Rules, the appointing authority has been conferred with the power to compulsory retire a government servant after he attains the age of 50 years. In order to ensure efficiency in public service the government has been given such a power and while doing so, the entire service record, character roll or confidential report with emphasis on later entries has to be taken into consideration. These are the materials which have to be taken into consideration by the Screening Committee to find out whether the government servant had outlived his utility in service. This is what has been observed by the Supreme Court in State of U.P. Vs. Vijay Kumar Jain, AIR 2002 SC 1345.
In the present case the Screening Committee had taken into consideration the relevant materials and, therefore, no infirmity can be found in the decision taken by the District Judge, Ballia to compulsory retire the petitioner-appellant on the basis of the recommendation made by the Screening Committee.
We, therefore, see no good reason to interfere with the judgment and order of the learned Judge. The Special Appeal is, accordingly, dismissed."
In Dwarika Singh (Supra) and in Awadh Bihari Tiwari (supra), the attention of the court was not drawn to the judgment, sought to be reviewed.
In the circumstances, we find that the application to review the judgment dated 8.12.2006, is grossly barred by laches, and further that the subsequent judgments in which the judgment sought to be reviewed was not noticed, cannot be made a ground of review.
The review application is rejected.
Order Date :- 18.2.2011 nethra