Karnataka High Court
Rajagopal Gangadhar Sajekan vs The High Court Of Karnataka, Bangalore ... on 11 February, 2000
Equivalent citations: ILR2001KAR29, 2001(3)KARLJ418
Bench: Ashok Bhan, R.V. Raveendran
ORDER
1. These four petitions filed by the same petitioner, involving interlinked and overlapping issues, are heard together by consent and disposed of by this common order.
The facts leading to filing of each of these four writ petitions, are briefly as follows:
I. In W.P. No. 16487 of 1989:
2. Petitioner was appointed as a District Judge on 9-2-1979 by direct recruitment, under the Karnataka District Judges (Recruitment) Rules, 1962.
3. By letter dated 11-8-1989, the Registrar of the High Court communicated to the petitioner, the following adverse remarks entered by the Hon'ble Chief Justice in the Confidential Report for 1987 (1-1-1987 to 20-8-1987):
"The officer has a tendency to take up light work and bypass old and complicated matters, and there is scope for improvement in his work.
On the whole, his work is not upto the standard expected of a Senior District Judge".
The above adverse remark will, for convenience, also be referred to as "Adverse Remark I (1987)". The petitioner filed objections dated 29-8-1989 and 31-8-1989 to the said Adverse Remark I (1987).
4. By letter dated 10-8-1989, the Registrar of the High Court of Karnataka communicated the following adverse remark by the Hon'ble Chief Justice on 10-8-1989 (while considering the remarks made by peti-
tioner in his capacity as Principal District Judge, Gulbarga in the Annual Confidential Reports of the Judicial Officers of Gulbarga District working under him):
"The learned Principal District Judge has not applied his mind at all. Has expressed his opinion mechanically in a casual manner. In Part-II point 2, he was required to express his opinion on each point. The recording of the remarks shows complete non-applicability of mind".
The above adverse remark will, for convenience, also be referred to as "Adverse Remark II (1987)". The petitioner filed a representation dated nil (submitted on 28-8-1989) to the said letter dated 10-8-1989 for ex-punction of the remarks.
5. By another letter dated 11-8-1989, the High Court communicated the following adverse remarks recorded in the petitioner's Confidential Report for the year 1988.-
Claim No. Description of claim Award of Arbitrator 1 Release of Rs. 38,85,890.91 due towards outstanding payments for the work done with interest at 24% per annum compounded quarterly from the dates the amounts actually became payable to the date of payment.
(a) Rs. 16,95,999.06was awarded, as detailed in Annexure-CL 1 to Award.
(b) Rs. 7,59,647.00 asinterest at 18% per annum on delayedpayments.
In regard to the said adverse remarks relating to the year 1988, he filed objections dated 15-9-1989 requesting for expunction.
6. The Governor of Karnataka, made the Karnataka Judicial Services (Recruitment) Rules, 1983 (for short 'Recruitment Rules') in exercise of his powers under Articles 233, 234 and proviso to Article 309 of the Constitution, in regard to recruitment to the posts of District Judges, Civil Judges, and Munsiffs. The said Recruitment Rules were amended by the Karnataka Judicial Service (Recruitment) (Amendment) Rules, 1989 creating a new category of posts known as District Judges (Super-time Scale). The Amended Rules came into effect on 3-8-1989. The method of recruitment for the newly created posts of District Judges (Supertime Scale) is by promotion by selection from the cadre of District Judges. The Government issued a notification dated 28-7-1989 sanctioning upgradation of ten posts in the cadre of District Judges (Supertime Scale).
7. A proposal was put up before the Administrative Committee No. 1 of the High Court for selection by promotion to the cadre of District Judges (Supertime Scale) against the ten sanctioned posts. The Committee considered the matter on 29-8-1989. Fifteen District Judges including the petitioner (who was at Sl. No. 5) were considered. After considering the C.Rs. and all other relevant facts, the Committee expressed its opinion that the following 10 District Judges (Sl. Nos. 1 to 4 and 6 to 11 in the list) from among the 15 District Judges were fit to be selected for promotion to the cadre of District Judges (Supertime Scale): (1) Sri B.N. Krishnan; (2) Sri N.D.V. Bhat; (3) Sri M.M. Mirdhe; (4) Sri R. Raraakrishna; (5) Sri B.N. Lalge; (6) Sri B. Jagannatha Hegde; (7) Sri A.B. Murgod; (8) Sri S.V. Tilgul; (9) Sri R. Ganesh Rao; (10) Sri S. Venkataraman. Out of the said 10 District Judges, Sl. Nos. 1 to 4 were senior to the petitioner and Sl. Nos. 5 to 10 were junior to the petitioner. The Administrative Committee No. 1 made the following observations in regard to the petitioner who was not selected.-
". ... Sri Rajagopal Gangadhar Sajekan is not yet fit to be selected for promotion to the cadre of District Judges (Supertime Sealer)".
8. The matter was thereafter placed before the Full Court on 6-9-1989. After considering the case of the 15 District Judges in the order of seniority with reference to their C.Rs. and all other relevant facts, the Full Court resolved to select and promote the 10 District Judges recommended by the Administrative Committee No. 1, to the cadre of District Judges (Supertime Scale). It further resolved that the petitioner is not fit to be selected for promotion to the cadre of District Judges (Super-time Scale). Accordingly, a notification dated 16-9-1989 was issued in regard to the promotion of 10 District Judges to the cadre of District Judges (Supertime Scale).
9. Feeling aggrieved, by his non-selection to the cadre of District Judges (Supertime Scale), the petitioner filed W.P. No. 16487 of 1989 and sought quashing the notification dated 16-9-1989 insofar as it related to the selection and promotion of respondents 3 to 8 (that is Sl. Nos. 5 to 10 in the notification) who were his juniors and for a direction to the High Court and the State Government to consider his case for promotion to the cadre of District Judges (Supertime Scale) with all consequential benefits.
II. W.P. No. 11524 of 1990:
10. The representation dated 28-8-1989 given by petitioner in respect of Adverse Remark II (1987) was rejected by the High Court, as per letter dated. 19-9-1989. The representation dated 15-9-1989 given by petitioner in respect of Adverse Remarks for 1988 was rejected by the High Court, as per letter dated 19-10-1989.
10.1 In continuation of his objections dated 29-8-1989 and 31-8-1989 relating to the Adverse Remark No. I (1987), objections dated 28-8-1989 regarding Adverse Remark II (1987), and objections dated 15-9-1989 relating to Adverse Remarks for 1988, petitioner gave one more representation dated 29-1-1990 requesting that the said adverse remarks be expunged.
10.2 The High Court sent a communication dated 8-2-1990 (An-nexure-K) to the petitioner informing him that there was no need to expunge the Adverse Remarks No. I (1987), recorded in his C.R. for the period 1-1-1987 to 20-8-1987. His request for expunction of the said remark thus stood rejected.
10.3 In regard to the adverse remarks relating to the year 1988, the High Court sent another communication dated 8-2-1990 (Annexure-L), deleting the remarks against item 9 (Reputation), item 10 (Overall view) and item 11 (Special remarks, if any), making it clear that the deletion will not mean that the explanation on the question of property returns had been accepted. The deletion of remarks against items 9, 10 and 11 was in view of the order dated 18-12-1989 of the Supreme Court in C.A. No. 5073 of 1989 deleting the remarks of the High Court made on the judicial side in RFA No. 727 of 1987 which led to the making of the said entries at items 9 to 11. But the adverse remarks regarding items 1 to 8 and the remark relating to non-satisfactory explanation in regard to delay in filing property returns continued.
10.4 The petitioner was aggrieved by the said two communications dated 8-2-1990 (Annexures-K and L). According to him, the Adverse Remark No. I (1987) and Adverse Remarks for 1988 ought to have been deleted in entirety.
11. In the meanwhile, an Articles of Charge dated 22-9-1989 was issued to him in Disciplinary Inquiry Case No. 1 of 1989 containing charges in regard to the following four misconducts.-
(i) Committing judicial misconduct in showing undue haste in disposing of O.S. No. 149 of 1987 during summer vacation, on 7-5-1987, by refusing adjournment to Government Pleader, while working as District and Sessions Judge/Vacation Judge, Gulbarga.
(ii) Failure to submit the annual statements of assets and liabilities for the years 1981 to 1986 as required under Rule 23 of the Karnataka Civil Services (Conduct) Rules, 1966 and later giving a false explanation in his letters dated 11-10-1988 and 15-10-1988 that he had in fact submitted the statements to the High Court as and when they fell due and enclosing copies of the statements for the years 1981 to 1986 contending falsely in the covering letter dated 15-10-1988 that he had in fact submitted the originals of those statements as and when due.
(iii) Acquisition of site bearing No. 5AC 963 at I Block, Hennur Banaswadi Layout, Bangalore, measuring 50' x 80' by taking possession on 22-9-1988 in pursuance of allotment from the Bangalore Development Authority under an allotment order received on 8-4-1985, without giving prior intimation to the High Court, in violation of the requirement of Rule 23(l)(a) of the Conduct Rules.
(iv) Raising loans of Rs. 10,000/- from the Karnataka Bank Limited, Banaswadi, Bangalore on 9-10-1985, Rs. 15,000/- from the Syndicate Bank, Palace Guttahalli, Bangalore on 10-4-1985 and Rs. 20,000/- from the Vysya Bank on 2-9-1985; in all Rs. 45,000/- without previous knowledge of the High Court and thereby violating Rule 21(4)(i)(e) of KCS Conduct Rules, 1966.
12. Petitioner was also aggrieved by the said charge memo. He contended that charge (1) could not survive as it was based on the observations/strictures made against him in the judgment dated 20-3-1989 in R.F.A. No. 727 of 1987 and the Supreme Court had quashed the strictures. He also contended that charges (2) to (4), were without basis. In fact in the representation dated 29-1-1990 (given by him for expunging the adverse remarks relating to 1987 and 1988), petitioner also requested for dropping the said charges.
13. The petitioner filed W.P. No. 11524 of 1990 for declaring that the said charge memo dated 22-9-1989 (Annexure-G) and the two letters dated 8-2-1990 (Annexures-K and L) relating to expunction of the adverse remarks, were illegal and arbitrary and a consequential direction to respondents to take remedial steps.
14. After filing W.P. No. 11524 of 1990, the petitioner gave one more representation dated 2-4-1990 for expunging Adverse Remark No. II (1987). Considering the said representation, the Hon'ble Chief Justice ordered on 26-4-1990 that the said remarks were made for guidance and not as an adverse remark. This was communicated to the petitioner by letter dated 4-5-1990.
15. The said petition (W.P. No. 11524 of 1990) was heard and dismissed by a learned Single Judge of this Court by order dated 11-1-1991. He held that the C.R. is nothing but a general assessment of the work performance by the Government servant, which serves as data for assessing comparative merit in the case of promotion/confirmation and it is not ordinarily related to specific incidents; and such entries do not amount to penalty or censure and the only remedy in such cases is for the Government servant to make a representation against such adverse remarks. He also observed that if there are any adverse remarks in the C.Rs., they will be considered by the promotional authority at the time of promotion and the fact that an opportunity was given to the employee to explain the adverse remarks might become relevant; and that in this case, as petitioner has not been promoted to the higher cadre on the basis of the aforesaid adverse remarks pertaining to 1987-88 and as the non-promotion had already been challenged in W.P. No. 16487 of 1989, it is more appropriate to consider the effect of the adverse remarks in W.P. No. 16487 of 1989. In regard to initiation of disciplinary proceedings in DI Case No. 1 of 1989, this Court observed that the petitioner will have to await the petition's final outcome. Consequently W.P. No. 11524 of 1990 was dismissed.
15.1 The order of dismissal was challenged by the petitioner in W.A. No. 1030 of 1991 which was also dismissed. The petitioner thereafter filed S.L.P. No. 7468 of 1991 which was disposed of by the Supreme Court, by the following order dated 8-5-1991.-
"While, we do not propose to give any direction relating to the disciplinary proceedings and leave it to be carried on in the manner provided by law, we would like that the proceedings may be expedited and preferably within four months the matter may be concluded.
The petitioner has filed a writ petition challenging the rejection of the representation against adverse entries. That writ petition has been disposed of by observing that in the writ petition filed earlier this question would be considered and no separate writ is necessary. We are inclined to say that once the representation against adverse entries was rejected the petitioner's challenge should have been examined on merit. The High Court may do well to consider the petitioner's stand in the writ petition relating to the adverse entries on merits".
15.2 In view of the said order, W.P. No. 11524 of 1990 stood remanded and petitioner filed LA. II for rehearing of W.P. No. 11524 of 1990. An order dated 10-9-1991 was made thereon directing that W.P. No. 11524 of 1990 be posted for hearing along with W.P. No. 16487 of 1989.
III. W.P. No. 25812 of 1994:
16. Another enquiry was started against the petitioner in DI Case No. 2 of 1991 by issuing Articles of Charge dated 11-3-1991. The charge against the petitioner was as follows.-
"That you on 8-11-1985 while working as Presiding Officer of Motor Accidents Claims Tribunal-IV, Bangalore City, had first adjourned the claim petition in MVC No. 230 of 1982 to 7-12-1985, that subsequently on the same day in the absence of respondents 1 and 2 and their Counsel and without notice to them struck out the portion in the order sheet in which the next date for evidence had been shown as 7-12-1985, recorded the evidence of a witness and made an entry in the order sheet about the recording of the evidence of P.W. 1 and posted the case to 20-11-1985 and that thereafter without notice to the respondents 1 and 2 or their Counsel you fixed further date of hearing prior to 7-12-1985, which was the original date fixed, and disposed of the claim petition on 6-12-1985 itself passing an order in favour of the petitioners and adversely affecting the respondents 1 and 2 and that you are thereby guilty of misconduct or conduct unbecoming of a Judicial Officer".
17. The petitioner filed written statement in regard to DI Case No. 1 of 1989 on 3-8-1990 and written statement dated 19-6-1991 in regard to DI Case No. 2 of 1991. Charge No. 1 in DI Case No. 1 of 1989 was deleted and charges (2) to (4) were renumbered as (1) to (3). After considering the objections, the High Court decided to hold enquiries in regard to the said two Articles of Charges. Accordingly by orders dated 4-3-1991 and 13-8-1991, K.A. Swami, J. (as he then was) was appointed as Inquiring Authority in regard to DI Case No. 1 of 1989 and DI Case No. 2 of 1991. After enquiry, the Inquiring Authority submitted his reports dated 29-6-1993 in DI Case No. 1 of 1989 and report dated 30-6-1993 in DI Case No. 2 of 1991. He held that all the three charges in DI Case No. 1 of 1989 and the only charge in DI Case No. 2 of 1991 were proved.
18. The Administrative Committee No. 1 of the High Court considered the said inquiry reports and by resolution dated 9-7-1993 directed that a copy of the report be served on the petitioner asking him to give his representation/reply in the matter and asking him to show cause against the punishment proposed. In pursuance of it, the copies of the reports were furnished to the petitioner and petitioner filed his separate representations dated 17-9-1993 in the two cases. After considering the same, the Administrative Committee No. 1 by resolutions dated 12-10-1993 accepted the reports of the Inquiring Authority and recommended the imposition of the penalty of censure in DI Case No. 1 of 1989 and the penalty of withholding of promotion to the cadre of District Judges (Su-pertime Scale) for a period of three years in DI Case No. 2 of 1991. Thereafter the matter was brought before the Full Court and the Full Court after considering the enquiry reports and the representations given by the petitioner, by resolution dated 19-10-1993 accepted the recommendations of the Administrative Committee No. 1 ana imposed the penalty of censure under Rule 8(2) of the KCS (CCA) Rules, 1957 in regard to DI Case No. 1 of 1989 and the penalty of withholding of promotion to the cadre of District Judges (Super-time Scale) for three years from 19-10-1993 under Rule 8(2)(iii)(a) of the said Rules in regard to DI Case No. 2 of 1991. In pursuance of the said decision of the Full Court, the High Court issued two orders dated 17-11-1993 imposing the punishment as aforesaid.
19. Feeling aggrieved, petitioner filed W.P. No. 25812 of 1994 for a declaration that the entire disciplinary proceedings against him in DI Case No. 1 of 1989 and DI Case No. 2 of 1991 resulting in the orders dated 17-11-1993 imposing penalty, were void. He also sought a direction to the High Court to consider his case and promote him to the cadre of District Judges (Supertime Scale) retrospectively from the date his immediate juniors were promoted to that cadre, without reference to the disciplinary proceedings.
IV. W.P. No. 18151 of 1999:
20. In the meanwhile, the petitioner's case for promotion to the cadre of District Judges (Supertime Scale) was considered by the High Court in 1990, 1991 and 1992 and by resolutions dated 2-11-1990, 28-11-1991 and 16-11-1992, it was resolved to defer the consideration of the case of the petitioner for promotion in view of the enquiry pending against him. His case was again considered in 1993. After considering the service records, C.R. and other material, it was resolved on 19-10-1993, that the petitioner was not fit and suitable for being promoted to the cadre of District Judges (Supertime Scale). In view of the punishment imposed in DI Case No. 2 of 1991 to withhold promotion for a period of three years from 19-10-1993, he was not considered for promotion, during 1994 and 1995.
21. Thereafter, the Screening Committee of the High Court considered his case for retirement in public interest under Section 285(4) of the Karnataka Civil Service Rules ('KCSR' for short) on 15-11-1996. After considering the CRs, work performance and service records, the Committee opined that it is not in public interest to continue the petitioner in service and he should be retired under Rule 285(4) of the KCSRs and made a recommendation to the Full Court accordingly. The Full Court by resolution dated 22-11-1996 after considering the resolution dated 15-11-1996 of the Committee and after considering the CRs, work performance and relevant service records, resolved to accept the recommendation of the Screening Committee to compulsorily retire the petitioner in public interest under Rule 285(4) of the KCSRs. Consequently, a notification dated 10-12-1996 (Annexure-Q) was issued by the Governor of Karnataka retiring the petitioner from service under Rule 285(4) of the KCSRs. The petitioner has filed W.P. No, 18151 of 1999 for quashing the said notification dated 10-12-1996 and a direction to the respondents to treat him as having retired from service only on attaining the age of superannuation on 30-11-1997 and for consequential benefits including arrears of salary.
Contentions of petitioner:
22. The petitioner put forth the following contentions in support of the several reliefs sought in these petitions.-
22.1 The Administrative Committee No. 1, which considered fifteen District Judges (including the petitioner) for promotion to Supertime Scale, fpund the petitioner not fit for being selected, because of the adverse remarks entered in his confidential records for 1987 and 1988. The adverse remarks were communicated to him only on 10-8-1989 and 11-8-1989. Even before he could file objections thereto and his request for expunction thereof was considered, the Administrative Committee No. 1 considered him for promotion on 29-8-1989 and Full Court considered him for promotion on 6-9-1989 and rejected him, obviously on the basis of the said adverse remarks. No adverse remark in the confidential record could be used for the purpose of overlooking the claim for promotion, unless an opportunity was given to the officer concerned to file his objections/representation in that behalf. In other words, during the pendency of a representation for deletion of adverse remarks in the confidential record, the adverse remarks cannot be relied on for ignoring an officer's claim for promotion. In this case, the adverse remarks in the confidential records for the years 1987 and 1988 have been wrongly considered by the High Court on 6-9-1989 to ignore him for promotion to the cadre of District Judges (Supertime Scale) and, therefore, the promotion of his juniors (respondents 5 to 8 in W.P. No. 16487 of 1989) and failure to promote him, are illegal.
22.2 When objections to the adverse remarks are considered and the adverse remarks are either toned down/modified/expunged, then there should be a de novo consideration of the case of the officer concerned for promotion as from the date when his juniors were promoted. In this case, as petitioner was not promoted to the cadre of District Judges (Supertime Scale) when his juniors were promoted by notification dated 16-9-1989, on the basis of the adverse remarks relating to 1987 and 1988, the High Court ought to have reconsidered his case for promotion to the cadre of District Judges (Supertime Scale) after its order dated 4-5-1990 (holding that the Adverse Remark No. II (1987) was not an adverse remark, but only for guidance) and the order dated 8-2-1990 (deleting the adverse remarks in columns 9 to 11 of confidential record for the year 1988) and failure to do so is illegal.
22.3 The reports of the Inquiring Authority dated 29-6-1993 and 30-6-1993 in DI Case No. 1 of 1989 and DI Case No. 2 of 1991 were made by the Inquiry Authority after the announcement regarding his appointment as the Chief Justice of the Madras High Court and therefore the Reports should be treated as having been given by a person without jurisdiction or authority, 22.4 The petitioner had raised several objections to the Inquiry Reports dated 29-6-1993 and 30-6-1993. Though normally the Disciplinary Authority need not give reasons where he agrees with the findings of the Inquiring Authority, where issues relating to competence of Inquiry Authority to hold or continue the inquiry are raised in the objections, the Disciplinary Authority is bound to consider them. Further the failure of the Disciplinary Authority to deal with several points raised by petitioner in his objections to the Inquiry Reports amounts to non-application of mind, vitiating the final orders of the Disciplinary Authority accepting the Inquiry Reports and imposing punishments. Therefore the orders dated 17-11-1993 imposing punishment in DI Case Nos. 1 of 1989 and 2 of 1991 are liable to be set aside, 22.5 There is no justification or grounds for the High Court to retire him under Rule 285(4) of the KCSRs. On the other hand, on account of blemishless service rendered by him, he should have been considered for promotion to Supertime Scale retrospectively with effect from the date his juniors were promoted to Supertime Scale.
Principles relating to Adverse Remarks:
23. We will first refer to the decisions relied on by the parties.
24. In Gurdial Singh Fijji v State of Punjab, the appellant was not granted in Integrity Certificate because of an adverse report. The representation made to the appellant against the adverse report was not considered and disposed of. In the meanwhile, the Selection Committee did not select him for promotion. In the circumstances, the Supreme Court observed thus.-
"One of the reasons which evidently weighed with the Selection Committee in not putting the appellant's name on the select list was that the Chief Secretary had not issued the Integrity Certificate in his favour. Thus the non-inclusion of appellant's name in the select list and the non-issuance of the Integrity Certificate are closely linked whether or not there was another reason also for which the Selection Committee kept him out from the select list.
The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for some reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult to support the non-issuance of the integrity certificate to the appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, but is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him".
25. In Amar Kant Choudhary v State of Bihar and Others, the main contention urged was that the Selection Committee had committed an illegality in rejecting the claim of appellant for being included in the select list by relying upon adverse entries made in the confidential rolls, which had not been communicated to him or against which he had made representation which had remained undisposed of and which had been subsequently expunged. Following the decision in Gurdial Singh Fijji's case, supra, the Supreme Court held that the case of appellant had not been considered in a just and proper manner and observed as follows:
"The decisions of the Selection Committee recorded at its meetings in which the case of the appellant was considered are vitiated by reason of reliance being placed on the adverse remarks which were later on expunged. The High Court committed an error in dismissing the petition of the appellant and its order is, therefore, liable to be set aside. We accordingly set aside the order of the High Court. We hold that the appellant has made out a case for reconsideration of the question of his promotion to the Indian Police Service Cadre of the State of Bihar as on December 22, 1976 and if he is not selected as on that date for being considered again as on March 12, 1981. If he is not selected as on March 12, 1981 his case has to be considered as on October 14, 1981. The Selection Committee has now to reconsider the case of the appellant accordingly after taking into consideration the orders passed by the State Government subsequently on any adverse entry that may have been made earlier and any other order of similar nature pertaining to the service of the appellant. If on such reconsideration the appellant is selected he shall be entitled to the seniority and all other consequential benefits flowing therefrom. We issue a direction to the respondents to reconsider the case of the appellant as stated above. We hope that the above direction will be complied with expeditiously but not later than four months from today".
26. In Brij Mohan Singk Chopra v State of Punjab , the Supreme Court held that unless an adverse report is communicated and representation, if any, made by the employee is considered, it cannot be acted upon to deny promotion to him or to retire him prematurely. The Supreme Court observed:
"There is no doubt that whenever an adverse entry is awarded to a Government servant it must be communicated to him. The object and purpose underlying the communication is to afford an opportunity to the employee to improve his work and conduct and to make representation to the authority concerned against those entries. If such a representation is made it is imperative that the authority should consider the representation with a view to determine as to whether the contents of the adverse entries are justified or not. Making of a representation is a valuable right to a Government employee and if the representation is not considered, it is bound to affect him in his service career, as in Government service grant of increment, promotion and ultimately premature retirement all depend on the scrutiny of the service records".
27. In State of Madhya Pradesh v Bani Singh and Another, the Supreme Court observed thus.-
"In fact, even in respect of the adverse remarks which has been now quashed the respondent-officer had made his own representation and the representation also was pending consideration at that time and it was disposed of only in December 1986. The remark, therefore, should not be taken to have become final so as to enable the Committee to take that remark into consideration. The deferring of the consideration in the meeting held on November 26, 1980, therefore, could not be considered as valid".
28. In R.K. Singh v State of Uttar Pradesh, the Supreme Court held that where the adverse entries are expunged fully, the candidate should be considered for promotion from the date of his eligibility and not from the date of expunction.
29. In Mallinath Jain v Municipal Corporation of Delhi , a Division Bench of the Delhi High Court, after referring to the Official Memorandum dated 30-8-1969 issued by the Ministry of Home Affairs, Government of India, containing instructions regarding functions of Departmental Promotion Committees, held that where adverse remarks have not been communicated to the officer concerned, that fact should be given due weight while assessing the suitability of the officer for promotion and any reliance upon adverse remarks which have not been communicated to the officer would be violative of principles of fair play and natural justice. It was further held that where the adverse remarks have been taken into consideration by the DPC before they were communicated to the officer concerned and subsequently the said remarks have been toned down on a representation made by the officer, it is just and fair that toning down should be brought to the notice of the DPC again for the purpose of consideration of the officer for promotion.
30. The following principles emerge from the above decisions.-
(a) Adverse remarks entered in Confidential Records, are not imposition of penalties of 'censure' and therefore it is not necessary to hold any enquiry or issue a show-cause notice betore making such entries.
(b) The Confidential Records of an officer are basically the performance appraisal of the officer and constitute vital service record in relation to his career advancement. As any adverse remark in the CRs could mar the entire career of the officer, the authority making or directing such remark should take an objective decision after careful consideration of all relevant material, that it is imperative to make such remark having regard to acts of the officer (P.K. Shastri v State of Madhya Pradesh and Others).
(c) Whenever adverse remarks are recorded in CRs, they should be communicated to the officer concerned without delay, within a reasonable period, and if he makes a representation for modification/deletion, it should be considered and appropriate orders passed thereon without delay, so that the valuable right of promotion either by selection or by seniority-cum-merit, is not lost or overlooked or deferred, as a consequence of such adverse remarks.
(d) Once an officer is promoted to a higher post on the basis of merit and selection, adverse entries, if any, made in the service record prior to such promotion lose their significance and remain merely a part of past service record. The service of the officer cannot thereafter be curtailed by compulsory premature retirement on the basis of such adverse remarks made prior to promotion, in the absence of any further adverse remarks or fall in performance after the promotion. Further, it is not permissible to prematurely retire an officer on the basis of adverse entries, representations against which are not considered and disposed of (Baidyanath Mahapatra v State of Orissa and Another).
(e) In the absence of any statutory rule or instructions requiring recording of reasons, the Competent Authority who is rejecting the representation made by the Government servant against the adverse remarks, is not under any obligation to record reasons for such rejection. But the Competent Authority should consider the representation in a fair and just manner. Absence of an obligation to record reasons while rejecting the representation, does not mean the Competent Authority can arbitrarily reject the representation without there being any underlying reason. When the action is challenged in a Court, the Competent Authority may, and should, justify its action by placing the reasons for rejection before the Court (vide Union of India and Others v E.G. Nambudiri).
(f) Where the promotion is by selection and not on the basis of seniority-cum-merit, if the Selection Committee wants to act on the adverse remarks in the CRs which have not yet been communicated to the officer, or which have been communicated, but a decision is yet to be taken on the objections, the Selection Committee should bear in mind that the adverse remarks are 'untested', and may not be final but subject to expunction/modification after considering the representations of the officer concerned. It may, if the circumstances so permit, defer consideration of the claim of the officer concerned for promotion, till a decision is taken on the request for expunction of the adverse remarks, rather than reject the claim outright on the basis of the 'untested' adverse remarks.
(g) If the Selection Committee ignores the claim of the officer on the basis of adverse remarks in the CR and subsequently the adverse remarks are modified or expunged, the case of the officer should be considered afresh for promotion by taking note of the expunction/modification of the adverse remarks, with effect from the date on which he would have been selected but for the adverse remarks (that is the date of select list in which he was omitted and his juniors were promoted).
(h) Even where the non-selection is based not only on the untested adverse remarks in the CRs, but other material, the Selection Committee will have to review the case whenever the adverse remarks are subsequently expunged or modified, and decide whether the other material was by itself sufficient to deny the officer promotion.
We will now consider the several reliefs sought by the petitioner in the light of the aforesaid principles.
Re: Prayer for quashing notification dated 16-9-1989 insofar as the selection of respondents 3 to 8 (in W.P. No. 16487 of 1989) and non-selection of petitioner;
31. In this case, the promotion to the cadre of District Judges (Super-time Scale) is not on seniority-cum-merit, but on selection. The candidates are not subjected to any test or interview. The consideration of the candidate is by examination of the quality of judgments, aptitude for work and readiness to take up responsibility, conduct and dignity inside and outside the Court, reputation regarding honesty, integrity and impartiality and general assessment of the work and conduct. In the case of District Judges directly recruited, the assessment is with reference to the confidential records from the date of appointment. In the case of District Judges promoted from the cadre of Civil Judges, the assessment is with reference to the confidential records from the date of promotion as District Judges.
32. The petitioner relied on the Official Memorandum dated 9-10-1985 issued by the Government of Karnataka to DPCs, containing the procedure to be adopted by them for promotion to State Services on the basis of seniority-cum-merit to contend that CRs of only preceding five years should be examined. The relevant portion of the procedure laid down for considering the CRs for promotion, is extracted below.-
"The Departmental Promotion Committee should consider the Confidential Reports of officials for a period of five years immediately preceding the date of consideration of his suitability of promotion. ....... The non-availability of any CR for any period during the preceding five years should not be held against the official concerned".
But the said procedure is applicable only to promotion by seniority-cum-merit and not by selection. Further, in the absence of any specific rule governing the matter, the High Court can adopt such procedure as it deems fit. Therefore, the contention that CRs of only five years should be examined may not be tenable.
33. The petitioner was appointed in the year 1979. In regard to the year 1979, the only adverse remark was "that the officer should put up better efforts". However, this was made only on 27-4-1984 and communicated to the petitioner on 17-12-1984. In regard to the years 1980 and 1981, there were no adverse remarks. In regard to the year 1982, the following adverse remarks were communicated to the petitioner on 19-7-1983: "He must improve the quality of his judgment. He must be industrious and try to turn out more work". There were no adverse remarks in regard to the years 1983 and 1984. In regard to the year 1985, the following remark was communicated to the petitioner only for guidance, and not as an adverse remark as per letter dated 3-6-1986: "should avoid contact with outsiders". In regard to the year 1986, there were no adverse remarks. The adverse remarks relating to the years 1987 and 1988 have already been extracted above. These were the materials that were available for consideration to the High Court in August/September 1989, when petitioner's suitability for promotion to supertime scale was considered.
34. If the adverse remarks relating to the years 1987 and 1988 are excluded (or kept in abeyance having regard to the fact that they were communicated to the officer only a few days before he and his juniors were considered for promotion and his representation was yet to be considered), there was very little material to hold that he was not fit for selection. But, the adverse remarks in the CRs for 1987 and 1988 could not also be ignored merely on the ground that objections were yet to be considered. As noticed above, the ideal course in such a situation where there are some adverse remarks, but had not been communicated (or having been communicated representation was not considered) would have been to defer consideration of his case, so that if ultimately the adverse remarks are expunged and if he was otherwise suitable, he could be promoted from the date on which his juniors were promoted. The High Court did not defer consideration, but after considering the CRs (including those for 1987 and 1988) and other relevant facts, observed that the petitioner was not yet fit to be selected for promotion to the cadre of District Judges (Supertime Scale).
35. Adverse remarks have been made by the official superiors (who in this case are the Administrative Judge and the Chief Justice of the High Court) after due application of mind and assessment of relevant aspects, and such remarks will have to be taken note of (unless expunged or modified) when considering a District Judge for promotion. It is true that the Authority considering the candidate for promotion should also bear in mind that the adverse remarks have not yet become 'final' in the sense that the process of giving an opportunity to give a representation and consideration of representation for expunction/modification was not completed. But, at the same time, it cannot be said that such adverse remarks should be ignored and the officer should be promoted, merely because by then, the officer did not have an opportunity to give his representation. All that can be said is that there should be an endeavour to defer consideration, till the process of 'testing' the adverse remarks by giving an opportunity to make a representation and considering such representation is completed. But, where the consideration for promotion is not deferred, but the officer is considered for promotion, and is not selected, in view of such 'untested' adverse remarks, the non-selection does not become invalid. But, an obligation would arise to immediately consider the representation for expunction/variation and as a consequence, if there is variation or expunction of the adverse remarks, then to re-consider his case for selection without delay; and if found suitable he should be promoted from the date to which he would have been selected but for the adverse remarks. Therefore, the non-selection of petitioner on the basis of adverse remarks for 1987 and 1988 does not vitiate the promotion of his juniors. The notification dated 16-9-1999 insofar as it relates to the selection and promotion of respondents 3 to 8 in W.P. No. 16487 of 1989 to officiate as District Judges (Super-time Scale) is not illegal or invalid, nor does it require to be interfered with. It is also of some relevance to note that respondents 4, 5 and 8 were subsequently elevated to the High Court and have already retired. Third respondent has died. Respondents 6 and 7 have also retired from service.
Re: Prayer for consideration of petitioner's case for promotion Supertime Scale (in W.P. No. 16487 of 1989):
36. We have dealt with the question whether the petitioner was reconsidered for promotion, after his representation in regard to the adverse remarks were considered and partly expunged/toned down and the consequences thereof, while dealing with the second prayer in W.P. No. 25812 of 1994.
Re: Validity of rejection of the request for expunction of Adverse Remark I (1987), vide letter dated 8-2-1990 (Annexure-K in W.P. No. 11524 of 1990):
37. There are two adverse remarks by the Hon'ble Chief Justice against the petitioner in regard to year 1987. Adverse Remark No. II (1987) is in regard to the manner in which the petitioner, in his capacity as a District Judge, expressed his opinion in the Annual Confidential Reports of Judicial Officers working under him. This was ultimately treated as only remarks for guidance and not adverse remarks as per order of the Hon'ble Acting Chief Justice dated 26-4-1990 and no longer survive for consideration.
38. The other adverse remark, that is Adverse Remark I (1987), is made by the Hon'ble Chief Justice on 10-8-1989 disagreeing with the assessment by the Administrative Judge, of petitioner's work for the period 1-1-1987 to 20-8-1987. The Administrative Judge (M. Ramak-rishna, J., as he then was) had recorded that the petitioner possessed necessary qualities of an efficient Judge. Differing with the said opinion, the Hon'ble Chief Justice recorded the following remarks on 10-8-1989.-
"In 1987, Ramakrishna, J., himself had given a note about the delay caused by this officer in disposal of a case and in that regard the Administrative Committee No. 1 after considering his explanation desired that he should be more careful in future.
When I had been to Gulbarga, I had occasion to peruse some records and assess his work. With respect, I differ from the views expressed by the Administrative Judge.
The officer has a tendency to take up light work and bypass old and complicated matters, and there is scope for improvement in his work.
On the whole, his work is not upto the standard expected of a senior District Judge".
39. The petitioner gave representations dated 29-8-1989, 31-8-1989 and 29-1-1990 for expunction of the said remarks on the ground that the remarks were not justified. He contended that statistics for the said period showed that he was also disposing of old cases and he never avoided hard work. After consideration of the said representations, it was found that there was no need to expunge the said Adverse Remark I (1987), and rejection of his request for expunction was communicated to petitioner, by letter dated 8-2-1990. Petitioner contends that the rejection of his request for expunction is not proper and has been done in a mechanical manner without application of mind and without assigning any reasons. But, as held in Nambudiri's case, supra, failure to record reasons for rejecting the representation against the adverse remarks will not render the rejection illegal.
40. We have examined the said Adverse Remark I (1987) and the reasons given by the petitioner for seeking expunction thereof. The Hon'ble Chief Justice had entered the said adverse remarks on the basis of his personal inspection at Gulbarga when he perused the records and assessed the work of the petitioner. Except asserting that he was disposing old cases, the petitioner has not been able to make out any ground for expunging the said remarks made by the Hon'ble Chief Justice. We are satisfied that the said adverse remark is reasonable and valid and no ground is made out to either expunge or tone down the same. There' fore, the letter dated 8-2-1990 rejecting petitioner's request for expunction of Adverse Remark I (1987) does not call for interference.
Re: Validity of decision granting partial expunction of Adverse Remarks (1988) vide letter dated 8-2-1990 (Amiexure-L in W.P. No. 11524 of 1990):
41. In regard to the year 1988, the adverse remarks consisted of three parts. The first part relates to column Nos. 1 to 8 in the Confidential Report containing remarks that quality of judgments was poor, aptitude for heavy work and readiness to take up responsibility was poor, supervision and control over office staff was slack and conduct and dignity outside Court was lacking as judicial aloofness was not maintained. The second part relates to column No. 9 recording that Honesty was 'Not quite satisfactory', Integrity was 'Not satisfactory' and Impartiality was 'poor', and columns 10 and 11 recording that petitioner's decision which was appealed in RFA No. 727 of 1987 does not inspire confidence as a Judicial Officer. The third part relates to column No. 10 (overall view) and column No. 11 (special remarks, if any) where it is remarked that the loose explanation for the delay in filing property returns is an instance to be noted against him.
42. The second part of the adverse remarks regarding Reputation (honesty, integrity and impartiality) were based on certain observations made by a Division Bench of the High Court on the judicial side while deciding RFA No. 727 of 1987 against a judgment rendered by the petitioner in O.S. No. 149 of 1987. This Court while disposing of the said appeal, observed that he was motivated in disposing of the said suit and had shown undue haste in the matter. Feeling aggrieved, petitioner had filed SLP No. 12319 of 1989 (C.A. No. 5073 of 1989) before the Supreme Court. The Supreme Court by order dated 18-12-1989 expunged the said remarks and observations in the appellate judgment of this Court and further directed that any action taken either in the CRs or in the official records of the petitioner based on the said observations in the appellate judgment should be corrected. As a consequence, the second part of the adverse remark for 1988 (at column Nos. 9, 10 and 11) relating to Reputation and the reference to the decision in O.S. No. 149 of 1987 which was appealed in RFA No. 727 of 1987, in the CR for 1988 were deleted. The other two parts of the adverse remarks remained undisturbed. This was communicated to petitioner by letter dated 8-2-1990 (Annexure-L). Petitioner contends that the High Court has mechanically rejected his representation for deletion of those remarks without application of mind.
43. As noticed above the first part consists of the remark at item No. 1 relating to quality of judgment; the remark at item No. 4 relating to Aptitude for hard work and readiness to take up responsibility; the remark at item No. 5 relates to Supervision and Control of office staff; the remark at item No. 6 relating to Attitude towards superiors; the remark at item No. 7 relating to Conduct and Dignity; and the remark at item No. 8 relating to Outlook towards public. The third part consists of part of remarks in columns (10) and (11) relating to petitioner's unsatisfactory explanation for delay in filing property return. The remarks have been extracted in paragraph 9 above. The petitioner has not made out any ground to delete the said remarks. They are made by the Administrative Judge (a Judge of the High Court) who has considered his judgments and conduct. No ulterior motive is attributed in regard to such remarks. What had to be deleted (second part of the remarks for 1988) was deleted. The remaining parts were left undisturbed as petitioner had not made out any ground for their expunction/modification. We are satisfied that the refusal to expunge the said remarks in regard to 1988 is neither arbitrary nor unreasonable and there is no infirmity in the letter dated 8-2-1990 (Annexure-L) rejecting petitioner's request for deleting the said adverse remarks relating to 1988.
Re: Validity of charge-sheet dated 22-9-1989 is D.J. Case No. 1 of 1989 (Annexure-G in W.P. No. 11524 of 1990):
44. The four charges in the charge-sheet dated 22-9-1989 are extracted in para 11 above. Charge (1) was subsequently deleted in view of the decision of the Supreme Court in C.A. No. 5073 of 1989. The remaining three charges, that is charge Nos. (2) to (4) were renumbered as (1) to (3). The only ground urged by petitioner to quash the other three charges (renumbered as 1 to 3) is a vague statement that they are baseless. That is a matter of proof. Merely because the employee feels that the charges are without basis, is not a ground to quash the charge-sheet. In fact subsequently an enquiry has been held in regard to the three charges and Inquiry report dated 29-6-1993 has been submitted holding that the charges are proved and punishment has been imposed and the punishment imposed is challenged in W.P. No. 25812 of 1994. Therefore, the challenge to the charge-sheet on 22-9-1989 is rejected.
45. The second prayer in W.P. No. 11524 of 1990 is for a consequential direction to respondents to take remedial steps, if the first prayer for quashing the letter dated 8-2-1990 (Annexures-K and L) is granted. As the challenge to Annexures-K and L is rejected, the consequential prayer does not survive for consideration.
Re: First Prayer in W.P. No. 25812 of 1984 for a declaration that the proceedings in DI Case Nos. 1 of 1989 and 2 of 1991 and the orders of punishment dated 17-11-1993 are invalid:
46. In DI Case No. 1 of 1989 initiated by issue of charge-sheet dated 22-9-1999 there were four charges (as detailed in para 11 above). Charge No. 1 was deleted and in regard to the remaining three charges, the petitioner was given an opportunity to file objections. After considering his objections, it was decided to hold an enquiry and by order dated 4-3-1991, Inquiry Authority was appointed. One witness was examined and Exs. P. 1 to P. 32 were marked on the behalf of the State. The petitioner filed his written statement of defence as per Rule 11(16) of the KCS (CCA) Rules. Petitioner examined himself as D.W. 1 and also examined Smt. Bharathi (Senior Typist) as D.W. 2 and Sri M. Rudraiah (Advocate) as D.W. 3 and marked Exs. R. 1 to R. 18. After considering the evidence and arguments, the Inquiry Authority submitted a detailed report dated 29-6-1993 holding the petitioner guilty of the three charges. The Report was considered by Administrative Committee No. 1 on 9-7-1993 and it was resolved to serve a copy of the report on the petitioner asking him to submit his reply. After considering his reply, Administrative Committee No. 1 passed a resolution dated 12-10-1993 recommending the punishment of censure. By resolution dated 19-10-1993 the Full Court accepted the same and thereafter the impugned order dated 17-11-1993 (Annexure-A) was issued imposing the penalty of 'Censure under Rule 8(ii) of Karnataka Civil Services (CCA Rules, 1957)'.
47. In regard to DI Case No. 2 of 1991, articles of charge was issued on 12-3-1991. The charge is extracted in para 16 above. The petitioner filed his statement of defence dated 19-6-1991. After considering it, an enquiry was ordered and by order dated 13-8-1991 an Inquiry Authority was appointed. Sriyuths B.V. Byra Reddy, K. Srinivas Upadya and M. Rajanna were examined as P.Ws. 1 to 3 and Exs. P. 1 to P. 9 marked on behalf of the State. The petitioner examined himself as D.W. 1 and examined two more witnesses as D.Ws. 2 and 3 and marked Exs. D. 1 to D. 18. After considering the evidence and arguments, the Inquiry Authority submitted the report dated 30-6-1993 recording the finding that the charge was proved. The Administrative Committee No. 1 by resolution dated 9-7-1993 directed service of a copy of report. A copy of the said report was furnished to the petitioner and he was given an opportunity to show cause. His representation dated 17-9-1993 was considered by the Administrative Committee No. 1 and it resolved on 12-10-1993 recommending acceptance of the report and the imposition of penalty and the Full Court on 19-10-1993 accepted the same and resolved to impose the punishment of withholding of promotion to the cadre of DJs (STS) for three years from 19-10-1993, in pursuance of which the order dated 17-10-1993 (Annexure-B) imposing punishment was issued.
48. The principles relating to judicial review in disciplinary enquiry matters in well-settled. In Nand Kishore Prasad v State of Bihar and Others, the Supreme Court held that if the disciplinary enquiry has been conducted fairly without bias or predilection, in accordance with relevant rules, the order passed by the Authority cannot be interfered in writ proceedings merely on the ground that it was based on evidence which would be insufficient for conviction of the delinquent on the same charge in a criminal trial; and the High Court will examine the records not with a view to make out or reconstruct a new case, but only to see whether there was some evidence of the primary facts relied upon by the Inquiry Authority in support of its conclusion. The Supreme Court in B.C. Chaturvedi v Union of India, and Others, has held as follows:
"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as Appellate Authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case".
49. The petitioner has not been able to point out any procedural irregularity or violation of principles of natural justice. The findings are arrived on the basis of evidence. In view of it, the learned Counsel for the petitioner submitted that the petitioner will restrict his challenge to the Enquiry Report and consequential imposition of the penalties in the two cases, to only one ground. He contended that the Inquiry Authority (Justice K.A. Swami as he then was) submitted the reports in the two cases on 29-11-1993 and 30-11-1993 after the announcement of his appointment as Chief Justice of Madras High Court. He contended that once his appointment as Chief Justice of Madras High Court was announced, he ought not to have submitted the inquiry reports and therefore there was a procedural irregularity. It may be true that the appointment of Justice K.A. Swami as the Chief Justice of Madras High Court had been announced by the time he submitted the two reports. But, the Notification dated 15-6-1993 issued by the Government of India, shows that the President appointed him to be the Chief Justice of the Madras High Court, only with effect from the date he assumes his office. It is not in dispute that he continued to be a Judge of the High Court of Karnataka on 29-6-1993 and 30-6-1993 when he submitted the said reports. It was thereafter that he went to Madras and assumed charge as Chief Justice of Madras High Court. We do not therefore find any impropriety in the Inquiring Authority submitting the reports on 29-6-1993 and 30-6-1993 in the two cases as the inquiry was conducted by him and arguments were heard by him.
50. The petitioner next urged that he had submitted representations/objections dated 17-9-1993 objecting to the Enquiry Reports and no reasons are assigned in the orders of punishment dated 17-11-1993 for rejecting his objections and therefore imposition of punishments by acceptance of the Enquiry Reports is illegal. He relied on the observation of the Supreme Court in Managing Director, ECIL, Hyderabad v B. Karunakar, that "the Disciplinary Authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges". As noticed above, the Enquiry Reports dated 29-6-1993 and 30-6-1993 in the two cases submitted by the Inquiry Authority, were placed before Administrative Committee No. 1 of the High Court on 9-7-1993. The Committee considered the reports and directed that copies of the reports be furnished to petitioner and he be given show cause. When petitioner filed his objections dated 17-9-1993, the reports of the Inquiry Authority and the representations of the petitioners were considered by the Administrative Committee No. 1 on 12-10-1993 and it was resolved to recommend acceptance of the findings recorded against the petitioner in the Enquiry Report and to impose penalty. The entire record including the reports of the Inquiry Authority, the representations of the petitioner and the recommendations of the Administrative Committee No. 1 were placed before the Full Court on 19-10-1993. The Full Court after considering the Inquiry Report, and the representations of the petitioner and all other material on record resolved to accept the findings of the Inquiry Authority and the recommendation of Administrative Committee No. 1 and imposed penalties, which was communicated by the orders dated 17-11-1993.
51. Where the Inquiry Authority has examined the matter in great detail and has recorded reasons for his findings and the same are accepted by the Disciplinary Authority it is not necessary for the Disciplinary Authority to record the reasons for accepting the same. Similarly, where the employee gives a representation objecting the Inquiry Report or any findings of the Inquiry Authority, and where the Disciplinary Authority clearly states that the Enquiry Report and the objections/representations have been considered, it is not necessary for the Disciplinary Authority to record reasons for rejection of the grounds raised in the representation given by the employee, before accepting the Inquiry Report. What is required is that final order should disclose application of mind by the Disciplinary Authority to the representation of the employee, and not setting out of reasons for accepting the Inquiry Report. So long as application of mind is discernible from the records, want of detailed reasons is not a lacuna. 'Consideration' is not synonymous with 'assigning reasons' in such matters under administrative law or service jurisprudence. It cannot be said that unless reasons are assigned there is no consideration. The following observations in Nambudiri's case, supra, are a complete answer to petitioner's contentions:
"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 aliunde before the Court to justify its action".
52. We do not, therefore, find any reasons to interfere with the penalty imposed on the petitioner by orders dated 17-11-1993.
Re: Prayer for consideration of the petitioner for promotion as a District Judge (Supertime Scale) retrospectively from the day his juniors are promoted:
53. The petitioner seeks consideration of his case for promotion with retrospective effect from the date his juniors are promoted on two grounds. The first is that he was unjustly rejected on the basis of the adverse remarks entered in regard to the years 1987 and 1988 and the said adverse remarks having been partly expunged/modified, his case has to be reconsidered for promotion with retrospective effect. The second is that he was again unjustly ignored for promotion on the ground of pendency of Disciplinary Inquiry and thereafter in view of the punishment imposed in D.I. Case No. 2 of 1991; and as he has sought quashing of the disciplinary proceedings and the punishments granted therein, as a consequence, he is entitled to be promoted retrospectively from the date his juniors are promoted. The second ground no longer survives as we have rejected the challenge to the disciplinary proceedings and the punishment imposed thereon. What remains is the first ground only.
54. We have already held that where promotion to an employee has been denied or deferred on the basis of adverse remarks in the confidential reports of the employee and subsequently the said adverse remarks are either expedient or modified, the case of the employee should be reconsidered for promotion with effect from the date on which he ought to have been originally considered for promotion. The question for consideration is whether his case has been so reconsidered after partial expunction/toning down of the adverse remarks; and if not reconsidered, whether there should be a direction for reconsideration at this stage.
55. In regard to the year 1987, there were two adverse remarks.
55.1 The adverse remark communicated to petitioner under letter dated 10-8-1989 (referred to as Adverse Remark II (1987) above) was with reference to the manner in which the petitioner had entered remarks in the CRs of his subordinate Judicial Officers in Gulbarga District. The said adverse remark was made by the Hon'ble Chief Justice, not in the CR of the petitioner, but while examining the remarks made by the petitioner in his capacity as a District and Sessions Judge in the CRs of the Judicial Officers of Gulbarga District. The said remark was not entered in the CR of petitioner for 1987. It was subsequently treated as a remark for guidance and not as an adverse remark.
55.2 The other adverse remark relating to 1987 (referred to as 'Adverse Remark I (1987)' above) was made by the Hon'ble Chief Justice on 10-8-1989 in the CR relating to the petitioner for the period from 1-1-1987 to 20-8-1987, differing with the opinion of the Administrative Judge and has been extracted fully in paragraph 38 above. After considering the several representations dated 29-8-1989, 31-8-1989 and 29-1-1990 for expunction thereof, the High Court did not expunge or modify the said remarks and by letter dated 8-2-1990 informed the petitioner that there was no need to expunge the said remarks.
55.3 Thus, the resultant position is that the said adverse remark made in the CR of the petitioner for the year 1987 remains undisturbed.
56. In regard to the adverse remarks for the year 1988, as already noticed, the said adverse remarks related to three distinct matters. The first is general remarks made on an assessment of his work and conduct (contained in column Nos. 1 to 8 of the CR). The second is the adverse remark made in regard to the reputation of the petitioner in column No. 9 (and partly in cols. 10 and 11) with reference to his judgment in O.S. No. 149 of 1987 on the basis of judicial comments in R.F.A. No. 727 of 1987. The third is the adverse remark made in view of the unsatisfactory explanation for the delay in filing property returns, entered in columns 10 and 11. The second part of the remark with reference to the judgment in O.S. No. 149 of 1987, were deleted in view of the directions of the Supreme Court. But the other two parts of the adverse remarks relating to 1988, that is general assessment of the work and conduct made in column Nos. 1 to 8 and the remark relating to the unsatisfactory explanation for the delay in filing the property return made in column Nos. 10 and 11 remain undisturbed.
57. Thus, it would be seen that though there was some partial modification/expunction of the adverse remark in regard to 1987 and 1988, the main and substantial portions of the adverse remarks for the said two years remained undisturbed and were sufficiently serious to refuse him selection to supertime scale.
58. It is no doubt true that when partial modification/expunction took place in regard to the adverse remarks for 1987 and 1988, the High Court ought to have reconsidered the matter to decide whether what remained after such partial modification/expunction, was sufficient to reiterate the denial of promotion. It is also true that such reconsideration need not have been postponed merely on the ground of pending enquiry. But the reconsideration was postponed because of the pending enquiry and by the time the matter could be considered, punishment had been imposed withholding promotion to supertime scale for a period of three years by order dated 17-11-1993 and subsequently he was compulsorily retired. The question therefore is whether we should at this stage direct reconsideration of the case of the petitioner for the purpose of promotion from the date when his juniors were promoted (16-9-1989) having regard to the subsequent partial expunction/toning down. What has been expunged/modified is only a negligible part of the adverse remarks and the remaining adverse remarks are sufficiently serious to deny him promotion. If petitioner had been in service, in the normal course, it might have been considered appropriate to direct reconsideration of the petitioner's case on the basis of modification/expunction of part of the adverse remarks. But having regard to the fact that he is no longer in service and as we are satisfied that the modification/expunction did not materially alter the adverse remarks to such an extent as to require reconsideration of the decision denying him promotion, we hold that no case has been made out by the petitioner for reconsideration of his case for retrospective promotion.
Re: Validity of order dated 10-2-1996 (Annexure-Q in W.P, No. 18151 of 1999) retiring petitioner under Rule 285(4) of ECS Rules):
59. The petitioner has been retired in public interest under Rule 285(4) of Karnataka Civil Service Rules. Petitioner contends that only the High Court can form an opinion as to whether a District Judge is fit to continue in service or should be retired in public interest. Petitioner has relied on the decisions of the Supreme Court in Tej Pal Singh v State of Uttar Pradesh and Another and Registrar, High Court of Madras v R. Rajiah . Petitioner contends that a reading of the notification dated 10-12-1996 would show that the opinion that petitioner should be retired in public interest has been formed by the State Government and the Governor has passed the order of retirement under Rule 285(4) acting on such opinion; and that the Notification dated 10-12-1996 retiring him with immediate effect is illegal as it is not issued based on the opinion of the High Court.
60. The contention is without basis. The petitioner's case came before the Screening Committee of the High Court (constituted to screen Judicial Officers for the purpose of Rule 285(4) of KCSRs) on 15-11-1996. After considering the CRs, work performance and relevant service records of the petitioner, the Committee was of the opinion that it was not in public interest to continue him in service and that he should be compulsonly retired under sub-rule (4) of Rule 285 of the KCSRs, and resolved to recommend to the Full Court accordingly. The Full Court considered the said recommendation of the Screening Committee on 22-11-1996 and after examining CRs, work performance-and relevant service records, resolved to accept the recommendation of the Screening Committee to compulsorily retire the petitioner from service in public interest under Rule 285(4) of the KCSRs with immediate effect. The said decision of the High Court was communicated to the Chief Secretary to Government of Karnataka as per letter dated 26-11-1996 with a recommendation to retire him from service immediately by paying three months salary in lieu of notice. Acting on the said recommendation the Governor has exercised the power under Rule 285(4) of the KCSRs and compulsorily retired the petitioner with immediate effect by Notification dated 10-12-1996.
61. Petitioner next contended that his service from the date of appointment in February 1979 till date of retirement on 10-12-1996, was free from blemish, except for the adverse remarks in the CRs for the years 1987 and 1988 and the said remarks had been expunged/toned down subsequently and therefore there was no basis for deciding that he should be retired in public interest under Rule 285(4) of the KCSRs. Reliance is placed on the following observations in Rajiah's case, supra:
"It is true that the High Court in its administrative jurisdiction has power to compulsorily retire a member of the judicial service, in accordance with any rule framed in that regard, but in coming to the conclusion that a member of the subordinate judicial service should be compulsorily retired, such conclusion must be based on materials. If there be no material to justify the conclusion, in that case, it will be an arbitrary exercise of power by the High Court. Indeed Article 235 of the Constitution does not contemplate the exercise by the High Court of the power of control over subordinate Courts arbitrarily, but on the basis of some materials. As there is absence of any material to justify the impugned orders of compulsory retirement, those must be held to be illegal and invalid",
62. While it is true that one of adverse remarks for the year 1987 were toned down as only for guidance, the other adverse remark (for the period 1-1-1987 to 20-8-1987) remains unaltered. Similarly though a part of the remarks for 1988 was deleted, the remaining portions of adverse remarks in regard to the year 1988 remain undisturbed. In regard to the year 1990, it was recorded that the High Court in its order dated 15-11-1989 had remarked in M.F.A. No. 1628 of 1986 that petitioner's conduct in dealing with MVC No. 230 of 1982 was such as would undermine confidence of the litigants in the Court and it was also noted that two disciplinary inquiries have been initiated against the petitioner. For the period 25-6-1990 to 26-11-1990, it was noted that his integrity was doubtful and the representation given by him for expunging the said remark was rejected. In regard to the period 1-7-1991 to 31-12-1991 his reputation as to honesty, integrity and impartiality was found to be not satisfactory and it was also noted that he was facing an enquiry. His representation for expunction of the remarks was rejected. Again for the year 1992, his reputation as to honesty, integrity and impartiality was noted as not satisfactory. It was also noted that he was facing an enquiry. The representation for expunction of the remarks was rejected. In the year 1993, the petitioner was imposed two punishments on 17-11-1993, one of censure and another withholding of promotion for a period of three years. In regard to the year 1994, it was recorded that the aptitude for hard work and readiness to take up responsibility was not satisfactory and reputation as to honesty, integrity and impartiality was doubtful. It is, therefore, not correct for the petitioner to contend that except the CRs for the years 1987 and 1988, he had a blemishless record of service. There was sufficient material to reach the conclusion that it was in public interest to retire him from service. The Full Court has evaluated his work performance, CRs and service records and resolved to recommend to the Government to compulsorily retire the petitioner under Rule 285(4) of the KCSRs. We do not find any reason to interfere with either the decision of the High Court or the notification dated 10-12-1996 issued by the Government in pursuance of it.
Conclusion:
63. In view of above, all the four petitions are rejected.