Allahabad High Court
Shyam Shankar Ii vs State Of U.P. Thru. Prin.Secy. ... on 16 March, 2018
Bench: Devendra Kumar Arora, Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Case :- SERVICE BENCH No. - 17566 of 2016 Petitioner :- Shyam Shankar-II Respondent :- State Of U.P. Thru. Prin.Secy. (Appointment) & Anr. Counsel for Petitioner :- Yadukul Shiromani Srivast Counsel for Respondent :- C.S.C.,U.N. Mishra Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Rajnish Kumar,J.
(Delivered by Hon'ble Rajnish Kumar, J.)
1. Heard Shri Yadukul Shiromani Srivastava,learned counsel for the petitioner, Shri Upendra Nath Mishra learned counsel for opposite party no. 2 and learned Standing Counsel appearing for opposite party no. 1.
2. The petitioner has approached to this Court challenging the order dated 03.05.2016 passed by opposite party no. 1 by means of which petitioner has been compulsorily retired from service. He has further prayed for quashing of recommendation dated 14.4.2016 of the Full Court of the Hon'ble High Court communicated to the State Government vide letter dated 19.04.2016, so far as it relates to instant petitioner. Further prayer has been made for commanding the opposite parties to reinstate the petitioner in service with continuity and other service benefits followed by consequential benefits and allow him to work and pay regular salary, other allowances and perquisites regularly.
3. Facts in brief of the case as culled out from the pleadings for the purpose of adjudication of the present case are that the petitioner having been selected by U.P. Public Service Commission against the Recruitment Year 1999, was appointed on the post of Civil Judge, (Junior Division) vide Notification dated 21.05.2001 issued by the Registrar General, High Court of Judicature at Allahabad (in short ''RG High Court'). In pursuance thereof, petitioner assumed the charge on 21.5.2001 at Pratapgarh as Civil Judge (JD). Having been found fit, he was promoted to the post of Civil Judge (Senior Division) in the month of October, 2006 and was given posting at Ballia as such.
4. The petitioner was posted as Additional Chief Judicial Magistrate, Court No.1 w.e.f. 01.04.2008 to 15.12.2008 and as Civil Judge (SD) w.e.f. 16.12.2008 to 31.03.2009.
5. The Screening Committee was constituted vide order dated 28.03.2016 of Hon'ble the Chief Justice comprising three Hon'ble Judges for the purpose of screening the judicial officers under provisions of Rule 56(c) of the Fundamental Rule. The service records of the petitioner, along with other officers, was considered by the Screening Committee in its meeting held on 01.04.2016 and the Screening Committee made its recommendations. The recommendation of the Screening Committee in respect of the petitioner is reproduced here under:-
Sl.No. I.D. No. Name of Officers(S/Sri) Recommendations
15. 6001
Shyam Shankar-II, Addl. Civil Judge, Senior Division/A.C.J.M., Hardoi The adverse remarks occurring in the A.C.R. of officer for different years is being reproduced as under:-
2008-2009 The work, conduct and performance of the officer is not upto mark. Complaints were received during the period in question regarding his lack of bona fide and extraneous consideration in deciding some of judicial matters and the District Judge after making preliminary inquiry at his level also recommended for disciplinary action as also for transfer of the officer. In one matter i.e. complaint made by on Sri C.P. Singh, Advocate, against this officer, after receiving the reply of this officer I had issued warning to him.
The Court and the office of the officer was inspected between 20th July and 25th July, 2009 wherein the record pertaining to the period for which this entry is being given was also inspected and it was noticed that most of the registers commenced in 2009 itself and nothing was placed before the inspecting team showing that registers for the period prior to the maintenance of new registers were also available. Siyaha register shows serious discrepancies and appears to have been prepared later on which has been highlighted in the inspection report. It shows that even total of 6th January, 2009 was incorrect and several cuttings and overwriting existed without any initial of the concerned persons raising doubt about regular and proper maintenance of the said register. I, therefore, agree with the remarks of the District Judge. The officer is rated ''poor'. I am unable to certify his integrity.
Keeping in view overall service record of officer, the Committee recommends that the officer be compulsorily retired.
6. The said report of the Screening Committee dated 01.04.2016 was placed before the Full Court in its meeting dated 14.04.2016 and the following resolution was passed in respect of the petitioner:-
Supplementary Agenda Agenda Resolution
1. Screening of the Judicial Officers under Rule 56 (C) of U.P. Fundamental Rules.
Consideration of the minutes dated 1.4.2016 of the screening Committee comprising Hon'ble Mr. Justice V.K. Shukla, Hon'ble Mr. Justice Sudhir Agarwal and Hon'ble Mr. Justice P.K.S. Baghel in the matter.
Considered the minutes dated 1 April 2016 of the Screening Committee comprising Hon'ble Mr. Justice V.K. Shukla, Hon'ble Mr. Justice Sudhir Agarwal and Hon'ble Mr. Justice P.K.S. Baghel in the matter.
Resolved that the report/minutes dated 1 April 2016 of the Hon'ble Screening Committee comprising Hon'ble Mr. Justice V.K. Shukla, Hon'ble Mr. Justice Sudhir Agarwal and Hon'ble Mr. Justice P.K.S. Baghel be accepted and the following officers be retired compulsorily under Rule 56(c) of the U.P. Fundamental Rule:
S/Sri
1. xxx .....
14. xxxx
15. Shri Shyam Shankar-II, Additional Civil Judge, Senior Division/ACJM, Hardoi.
Registry to take follow up action .
(Hon'ble Mr. Justice V.K.Shukla, Hon'ble Mr. Justice Sudhir Agarwal and Hon'ble Mr. Justice P.K.S. Baghel abstained during deliberations).
7. The Full Court had accepted the recommendation of the Screening Committee and took a decision to retire the petitioner compulsorily under Rule 56(c) of the U.P Fundamental Rules. In pursuance of the acceptance of the recommendation of the Screening committee by the full court, the petitioner has been retired compulsorily vide Office Memorandum dated 03.05.2016 passed by the Government which has been impugned in the present writ petition alongwith the recommendation of the full Court dated 14.04.2016.
8. Shri Y.S. Srivastava, learned counsel for petitioner has submitted that the order of compulsory retirement has been passed only on the basis of sole adverse entry pertaining to the year 2008-09 in which the integrity of the petitioner was not certified. He further submitted that the petitioner was awarded adverse entry for the Year 2008-09 by the then learned District Judge and the integrity was not certified. Thereafter, the petitioner preferred representation on 12.06.2009 against adverse entry for the year 2008-09 before the Registrar General, Hon'ble High Court of Judicature at Allahabad through learned District Judge, Ballia. The learned Registrar (Confidential), Hon'ble High Court of Judicature at Allahabad had informed to the District Judge, Ballia that Hon'ble High Court has rejected the representation dated 12.06.2009 as communicated by letter dated 27.5.2010 supplied to the petitioner in 2010. As rejection order was not supplied, he could not know as to whether the grounds raised were properly considered or not on the Administrative side by the High Court depriving the rights of the petitioner for the reasons best known for rejection of representation resultantly, the same stood arbitrary and also violative of principles of natural justice.
9. Being aggrieved by the adverse entry, petitioner had filed writ petition No.45572 of 2010 which was dismissed in default on 03.02.2014. The petitioner had moved an application for restoration of the said writ petition and the same is pending. Since then neither any verdict has come from the judicial side of the High Court nor the representation dated 12.06.2009 has been decided and is pending in regard to the adverse remarks given in ACR of the year 2008-09 in Column Nos.1 (a), 1(f), 2 and 4 of the ACR recorded by the learned District Judge, Ballia. Therefore, the same ought not to have been considered by the Hon'ble Screening Committee as well as by the Hon'ble Full Court for retiring the petitioner compulsorily.
10. Learned counsel for petitioner further submitted that while granting adverse remark for the year 2008-09, the learned District Judge had recommended for a disciplinary action against the petitioner as recorded by the learned Administrative Judge in his order dated 19.9.2009 hence the disciplinary enquiry should have been held against the petitioner instead of his compulsory retirement from service.
11. To strengthen the aforesaid assertions, learned counsel for the petitioner has placed reliance upon the judgments rendered in 2000 (84) FLR 444; High Court of Judicature at Allahabad Vs. Sarnam Singh & another, (2013) 3 SCC 514; Rajesh Gupta Vs. State of Jammu & Kashmir and Others, (2010) 10 SCC 693; Pyare Mohan Lal Vs. State of Jharkhand & Others, (2001) 2 SCC 314; State of Gujrat Vs. Umedbhai M. Patel, Judgment & order dated 29.07.2015 passed by the Patna High Court in case no. 13965 of 2014; Ajay Kumar Srivastava Vs. High Court of Judicature at Patna & Others, Judgment & order dated 16.09.2013 passed by the Hon'ble Apex Court in Civil Appeal No. 8245/2013; Rajasthan State Road Transport Corporation & Others Vs. Babu Lal Jangir including the Judgment & order dated 12.01.2017 passed by the Hon'ble Apex Court in Civil Appeal No. 8665 of 2015; High Court of Judicature at Patna Vs. Ajay Kumar Srivastava & Others.
12. Learned counsel for the petitioner further submitted that since an order was passed in relation to the adverse remarks against the petitioner by the then Administrative Judge, the Hon'ble Full Court dated 14.04.2016 should not have been given effect to against the petitioner, as he had also participated in the same. It has also been submitted that as per provision contained in Explanation No. (2)(b) of Explanation under Rule 56(C) of Fundamental Rules, if the representation against any entry or ACR is pending, while considering the compulsory retirement, such representation should also have been considered along with said entry, accordingly, the representation of the petitioner against the entry in question should also have been considered.
13. On the basis of the aforesaid averments, learned counsel for the petitioner submits that the order dated 03.05.2016 passed by the State Government is cryptic and it has not been passed after application of mind. Accordingly, the same is not tenable in the eyes of law and is liable to be quashed.
14. Learned counsel for opposite party no. 2 vehemently opposed the submissions advanced by learned counsel for the petitioner and submitted that the representation of the petitioner against adverse entry or ACR for the year 2008-09 was duly considered and rejected by the Hon'ble Court and the same was communicated to the petitioner through letter dated 27.3.2010 as such there was no occasion for considering the representation of the petitioner along with adverse remark. It has further been submitted that the petitioner had filed writ petition No.45572 of 2010 challenging the adverse remarks before the Hon'ble High Court at Allahabad as admitted by the petitioner, which has been dismissed in default and the application for restoration filed by the petitioner is pending as admitted by him in para 37 of the writ petition. As such submission of learned counsel for petitioner is totally misconceived and baseless.
15. It has further been submitted that it is the settled proposition of law that even a single incident of doubtful integrity and uncertified integrity is sufficient to compulsorily retire a government servant that too a judicial officer. Accordingly, the decision has rightly been taken in accordance with law by the Full Court and in pursuance thereof the impugned order of compulsory retirement has been passed by the Government. He also pointed out that the then Administrative Judge had not participated in Full Court while the decision in respect of petitioner was taken.
16. On the basis of the aforesaid submissions, learned counsel for the opposite party no.2 submitted that the writ petition is patently misconceived as the order dated 03.05.2016 has been passed strictly in accordance with law taking into account the complete service record of the petitioner and the grounds taken by the petitioner are not tenable in the eyes of law and the writ petition is devoid of merit, hence, deserves to be dismissed.
17. Learned counsel for the opposite party no.2 has relied on 2002 (3) SCC 641; State of U.P. Vs. Vijay Kumar Jain, 2010 (10) SCC 693; Pyare Mohan Lal Vs. State of Jharkhand, 2001 (3) SCC 314; State of Gujarat Vs. U. M. Patel, 2012 (8) SCC 58; R. C. Chandel Vs. High Court of M.P. and the judgment reported in 2011(10) SCC 1; Rajendra Singh Verma (Dead) Through Lrs. and others Vs. Lieutenant Governor (NCT of Delhi) and others.
18. We have considered the submissions of the learned counsel for parties and perused the record.
19. A Screening Committee was constituted for the purpose of screening of Judicial Officers, i.e. those working in the cadre of Civil Judge and also for higher Judicial Services under Rule 56 (c) of Fundamental Rules vide order dated 28.03.2016 passed by the Hon'ble Chief Justice. The Screening Committee considered the case of several Judicial Officers and after considering their records recommended 15 officers to be retired compulsorily under Fundamental Rule 56(c). The name of the petitioner was also considered and recommended by the Screening Committee at Sr. No. 15. The broad sheet prepared for consideration of the case of the petitioner by the Screening Committee shows that in the year 2008-2009 his overall assessment was poor and his integrity was not certified. The consideration made by the Screening Committee goes to show that the work, conduct and performance of the officer, i.e. petitioner was not upto mark and there were complaints during the period in question, his lack of bona fide and extraneous consideration in deciding some judicial matters and after overall assessment the petitioner was rated poor and the Hon'ble Administrative Judge had observed that he is unable to certify the integrity of the officer. Considering over all service record of the petitioner, the Committee recommended for his compulsory retirement.
20. The petitioner had preferred representation against the adverse entry and the same was rejected by the Court, which was challenged by the petitioner in writ petition no. 45572 of 2010. The said writ petition was dismissed in default on 03.02.2014. Thereafter the petitioner has moved restoration application and the same is pending. Accordingly, the said entry is final. Hence, on consideration of the same by the Screening Committee for the purpose of screening of the petitioner, the recommendation in respect of the petitioner cannot be said to be in-valid, biased, arbitrary or illegal in any manner and it is in accordance with law.
21. The submission of the learned counsel for the petitioner that since the District Judge had recommended for disciplinary action against the petitioner for the year 2008-09, hence the disciplinary enquiry should have been held against the petitioner instead of retiring compulsorily, is misconceived because no action was taken in furtherance thereof. Accordingly, the adverse entry for the year 2008-09 had become final and that could have been considered for the purposes of screening of the petitioner and rightly considered.
22. The Hon'ble Apex Court in Baikuntha Nath Das V. Chief District Medical Officer; reported in (1992) 2 SCC 1010, the leading case in respect of compulsory retirement, has laid down certain criteria, which, on reproduction, reads as under:
"(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be perverse order.
(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration."
The aforesaid principles have been considered and reiterated by the Apex Court in the case reported in 2001(3) SCC 314; State of Guarajt V. Umedbhai M. Patel which sum up the points in para-11 as under:
"(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead- wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even un-communicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."
23. The Hon'ble Apex Court in the aforesaid judgment has held that for better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service of the officer giving due weightage to the record of performance during the later years. Upon consideration of the record of an employee if it is found that he is no longer useful to the general administration, he should be compulsorily retired from the service for the sake of public interest. The said judgment has also been relied by the counsel for the petitioner, as such, there is no dispute on the proposition of law.
24. In the case of State of U.P. vs. Vijay Kumar Jain; reported in 2002 (3) SCC 641, the Hon'ble Apex Court has held that withholding of integrity of a government employee is a serious matter and single adverse entry in itself is sufficient to compulsorily retire an incumbent from service. Relevant para-16 of the said judgment is reproduced as under:
"Withholding of integrity of a government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13.6.1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory retirement. During pendency of the writ petition in the High Court, the U.P. Services Tribunal on a claim petition filed by the respondent, shifted the entry from 1997-98 to 1983-84. Shifting of the said entry to a different period or entry going beyond ten years of passing of order of compulsory retirement does not mean that its vigour and sting of the adverse entry is lost. Vigour or sting of an adverse entry is not wiped out merely it is relatable to 11th or 12th years of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from service, was duly considered by the State Government and said single adverse entry in itself was sufficient to compulsorily retire the respondent from service. We are, therefore, of the view that entire service record or confidential report with emphasis on the later entries in the character roll can be taken into account by the government while considering a case for compulsory retirement of a government servant."
25. The same view has been reiterated by the Hon'ble Apex Court in a case reported in 2010 (10) SCC 693; Pyare Mohan Lal vs. State of Jharkhand holding that vigour or sting of an adverse entry is not wiped out merely it relates to the remote past.
26. In regard to the integrity of a Judge, the Hon'ble Supreme Court has held in para-21 of C. Ravichandran Iyer Vs. Justice A.M. Bhattacharjee and others (1995) 5 Supreme Court Cases 457 as under:
"Judicial office is essentially a public trust. Society is, therefore, entitled to except that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of conduct and rectitude from a Judge. Unwritten code of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only of the Judge but the court itself. It is, therefore, a basic requirement that a Judge's official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than expected of a layman and also higher than expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society."
27. In view of the aforesaid discussions, we are of the considered opinion that a single adverse entry and withholding of integrity is sufficient to retire compulsorily a Judicial Officer.
28. Accordingly, we find that the order of compulsory retirement is neither arbitrary, nor irrational or there is any legal flaw in the same. It also does not suffer from malafide and it is in public interest. The then Administrative Judge had also not participated at the time decision was taken by the Full Court in regard to petitioner, as such the said ground is also not tenable.
29. The Hon'ble Supreme Court has also held that once an evaluation has been done by the Committee of High Court Judges, it does not require any interference in Naval Singh Vs. State of U.P. and Another (2003) 8 Supreme Court Cases 117 in para-2 which reads as under:
"At the outset, it is to be reiterated that the judicial service is not a service in the sense of an employment. 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. Further 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. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because order of compulsory retirement is based on the subjective satisfaction of the Authority."
30. The submission of the learned counsel for the petitioner that the impugned order has been passed merely relying on the recommendation of Full Court without application of mind is also misconceived because when once the Hon'ble Full Court, after considering the matter in its totality, recommended for compulsory retirement of the petitioner, then the order passed by the Government being an appointing authority, cannot be faulted. In this regard para-16 of a decision reported in 2012 (8) SCC 58; R.C. Chandel vs. High Court of M.P. is reproduced as under:
"16. That power of the High Court to recommend to the Government to compulsorily retire a judicial officer on attaining the required length of service or requisite age and consequent action by the Government on such recommendation are beyond any doubt."
31. Hon'ble Apex Court in a case reported in 2011(10) SCC 1; Rajendra Singh Verma (Dead) through Lrs. And others Vs. Lieutenant Governor (NCT of Delhi) and others has held as under:
"217. Having regard to their entire service record of the three officers, this Court is of the opinion that the competent authority was justified in passing the order retiring them compulsorily from service. Mere glance at the ACRs of the deceased officer and two other appellants makes it so glaring that on the basis thereof the decision to compulsorily retire them would clearly be without blemish and will have to be treated as well founded. This Court finds that before passing the orders in question, whole service record of each of the officer was taken into consideration. Keeping in view the comprehensive assessment of service record, the Screening Committee rightly recommended that the three officers should be prematurely retired in public interest forthwith. The Full Court after considering the report of the Screening Committee and also after taking into consideration the record of work and conduct, general reputation and service record of the three officers correctly resolved that it be recommended to the Lt. Governor of NCT of Delhi to retire the judicial officers forthwith in public interest. The orders do not entail any punishment in the sense that all the officers have been paid retiral benefits till they were compulsorily retired from service.
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."
32. In view of the aforesaid discussions, we are of the considered view that the impugned order of compulsory retirement passed against the petitioner is in accordance with law and the writ petition is misconceived and devoid of any merit, which is liable to be dismissed.
33. Accordingly, the writ petition is dismissed.
34. No order as to costs.
( RAJNISH KUMAR, J.) (D. K. ARORA, J.)
Order Date :- 16.3.2018
psd