Mahendrakumar Harmansingh ... vs Bombay & Ors
2011 Latest Caselaw 44 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                 
                   CIVIL APPELLATE JURISDICTION

                  WRIT PETITION NO. 1751 OF 2011




                                                
      Mahendrakumar Harmansingh Siriya.               ..  Petitioner.




                                           
                 versus
                          
      The Hon'ble Chief Justice,

      High Court of Judicature at
                         
      Bombay & Ors.                                   ..  Respondents.
                                        .....
        


      Mr. Ashutosh Kumbhkoni with Mr. Pramod G. Kuthane and
     



                 Yogesh S. Sankpal for the Petitioner.

      Mr. P.S. Dani with Mr. Prasad Kulkarni for R. Nos. 1 & 3.





                                        ......

                          CORAM :  DR.D.Y.CHANDRACHUD &
                                     A. A. SAYED, JJ.

14 November 2011.

ORAL JUDGMENT : (PER DR.D.Y.CHANDRACHUD, J.)

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The Petitioner has been retired prematurely from

judicial service in public interest under Rule 19 of the

Maharashtra Judicial Service Rules 2008 read with sub-rule (4)

of Rule 10 of the Maharashtra Civil Service (Pension) Rules,

1982. The Petitioner joined judicial service as a Civil Judge,

Junior Division and Judicial Magistrate, First Class on 29 March

1996. The Petitioner attained the age of 55 years on 11

October 2010. The Review Committee consisting of the Chief

Justice and the four senior most Judges held a meeting on 19

October 2010 for considering the cases of judicial officers for

review and continuation in judicial service beyond the age of

50, 55 and 58 as the case may be. As regards the Petitioner,

the following decision was arrived at :

" The Annual Confidential Reports of the above

Judicial Officer for the latest period i.e. 2004-2005

and 2005-2006 show that his integrity can be

doubted. In the Annual Confidential Report for the

years 2007-2008, the Hon'ble Guardian Judge made

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observations that the Judicial Officer needs to

improve his disposal. Thus the record shows that

the integrity of this officer is doubtful, whereas,

even after putting in 14 years of service it was

found that he needs improvement in his disposal.

In view of this, the Committee is of the opinion

that Shri M.H. Siriya does not deserve to be

continued in the Judicial Service beyond the age of

55 years."

2. Learned Counsel appearing on behalf of the

Petitioner submitted that two reasons have been adduced by

the Review Committee : (i) The ACRs for 2004-5 and 2005-6

show that the integrity of the officer "can be doubted"; and

(ii) For the year 2007-8 the Guardian Judge had made

observations in the ACR that the Officer needed to improve his

disposal. On the issue of integrity the Review Committee

noted that the record showed that the integrity of the officer

"is doubtful". The first submission is that the ACRs for the

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two years which reflected adversely on the integrity of the

Petitioner stated that the integrity can be doubted which, it is

urged, must be distinguished from a situation where integrity is

doubted. The second limb of the submission is that the doubt

about the integrity of the Petitioner was based on a single

instance where the Petitioner had ordered the release of certain

vehicles. This order of the Petitioner, it was contended, was

confirmed by the Revisional Court. Thirdly it has been urged

that the remarks of the Guardian Judge to the effect that the

disposal of the Petitioner needed improvement for the year

ending 31 March 2008 are erroneous having regard to the

disposal chart which forms part of the ACRs.

3. On the other hand it has been urged on behalf

of the Respondents that (i) When a Judicial Officer is sought to

be retired in public interest prematurely in accordance with the

power conferred by Rule 19 of the Maharashtra Judicial Service

Rules, 2008 read with Rule 10 (4) of the Maharashtra Civil

Services (Pension) Rules, 1982 the totality of circumstances has

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to be borne in mind; (ii) The totality of the service record was

before the Review Committee and was duly considered; (iii)

The service record of the Petitioner would indicate that (a) for

the years 2000-1, 2001-2 and 2002-3 he was consistently graded

as being an average officer; (b) Two preliminary inquiries were

held against the Petitioner at the conclusion of which it was

found by reports dated 4 October 2004 and 6 May 2006 that

the integrity of the Petitioner was doubtful; (c) The Petitioner

was accordingly administered warnings on 14 March 2005 and

24 January 2007; (d) The remarks made in the ACRs for

2004-5 and 2007-8 contain a reference to specific instances but

the remark that the integrity of the Petitioner was in doubt is

not based only on a solitary instance; (e) Even after 14 years

of service it was found that the Petitioner has to improve his

disposals. On this state of the service record, it was urged

that the Review Committee was justified in retiring the

Petitioner prematurely on attaining the age of 55 years when

his case for continuation in service came up for consideration.

On the basis of the law laid down by the Supreme Court it

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was urged that no case for interference under Article 226 of

the Constitution is made out.

4. The Petitioner has been retired from service in

public interest under Rule 19 of the Maharashtra Judicial

Service Rules 2008 read with Rule 10 (4) of the Maharashtra

Civil Service (Pension) Rules, 1982. In assessing whether an

officer should be continued in service upon the completion of

55 years, the Review Committee, following well settled settled

principles of law, is required to consider the totality of the

service record. Two recent judgments of the Supreme Court

may be referred to at this stage since they authoritatively lay

down the governing principles of law. In Pyare Mohal Lal vs.

State of Jharkhand & Ors. (Writ Petition (Civil) 382 of 2003)

decided on 10 September 2010, the Supreme Court observed

that the case of a judicial officer is required to be examined;

treating him differently from the other wings of the society as

he serves the State in a different capacity. The same principle

was reiterated by the Supreme Court in Rajendra Singh Verma

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vs. Lt. Governor of NCT of Delhi & Anr., 2011 (10) SCALE 315 in

the following observation:

"Judicial service is not a service in the sense of an

employment as is commonly understood. Judges

are discharging their functions while exercising the

sovereign judicial power of the State. Their

honesty and integrity is expected to be beyond

doubt. It should be reflected in their overall

reputation. There is no manner of doubt that the

nature of judicial service is such that it cannot

afford to suffer continuance in service of persons

of doubtful integrity or who have lost their utility."

Both these decisions emphasise that the entire service record

upto the date on which consideration is made by the Review

Committee has to be taken into account. For that matter the

fact that an officer was promoted or was granted increments

after an earlier adverse entry does not wipe out the effect of

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an adverse entry which can still be taken into account in

considering as to whether his service should be continued. In

Pyare Mohal Lal these principles were applied to the facts in

the following observation :

"It is evident from the aforesaid service

record of the Petitioner that he remained an

average officer throughout his service career and

could never improve. His out turn had been poor;

he had been given adverse entries regarding his

integrity/reputation as not good in the years

1999-2000 and remarks to that effect by the

Inspecting Judges in 1997 and 2001-2002. The

Petitioner had made a bald assertion that the

adverse entries have not yet been communicated to

him. It has been repeatedly submitted by him that

representations made by him against the said

adverse entries had not been disposed of.

Indisputably, uncommunicated adverse entries could

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be taken into account for the purpose of assessing

an officer for compulsory retirement."

5. In the present case, the Petitioner was appointed

on 29 March 1996. The ACRs of the Petitioner for the years

2000-1, 2001-2 and 2002-3 consistently ranked him only as an

average officer. That is the first aspect of the service record

which merits notice. The second aspect of the matter is that

the ACRs of the Petitioner contained an adverse expression of

doubt on the integrity and impartiality of the Petitioner. To

make a distinction between a remark which states that

integrity "can be doubted" and a remark which states that

"integrity is in doubt" would be to engage in hair-splitting.

There is no material difference. As a matter of fact in the

present case there were two preliminary inquiries conducted

against the Petitioner, the reports of which are available on

record. In his report dated 4 October 2004 the District and

Sessions Judge, Wardha had reason to doubt the integrity of

the Petitioner on the basis of specific circumstances. On 4

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March 2005, a warning was administered to the Petitioner that

while performing his duties as a judicial officer he should not

interfere in the business of the police authorities and that he

should be impartial. The second preliminary inquiry was

conducted by the Additional District Judge at Wardha and in

his report dated 2 May 2006 it was found that the integrity of

the Petitioner was doubtful and that there was substance in

the allegations against him. Based on this and upon finding

the explanation of the Petitioner to be unsatisfactory a

recordable warning was issued to the Petitioner by the

Disciplinary Authority. The Review Committee has in addition

adverted to the noting made by the Guardian Judge in the

ACRs for 2007-8 on the disposal of the Petitioner requiring

improvement.

6. The totality of the service record was before the

Review Committee. On the basis of the record as it stands, it

is impossible to accept the contention that the decision of the

Review Committee was vitiated. The service record of the

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Petitioner does not indicate that the Petitioner is an officer

who befits continuation in the judicial service of the State.

We would hasten to add that the evaluation and assessment is

that of the Review Committee. This Court under Article 226

only assesses the validity of the decision on the basis of well

settled parameters for the exercise of its jurisdiction. Having

applied those tests consistent with the law laid down by the

Supreme Court, we do not find that the decision suffers from

any error.

7. The Petition is accordingly dismissed. There shall

be no order as to costs.

(Dr. D.Y. Chandrachud, J.)

(A. A. Sayed, J.)