Bombay High Court
Shri Pradip Vasant Bavkar vs 2 The Registrar General on 16 November, 2011
Bench: J.P. Devadhar, K. K. Tated
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K
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5856 OF 2010
Shri Pradip Vasant Bavkar,
Age 55 years, Occ. Nil,
Residing at 201, Koyna Building,
Sector No.15, Plot No.16,
Sanpada, District Thane,
Navi Mumbai - 400 705. ..Petitioner.
Versus
1 The State of Maharashtra,
Through The Principal Secretary
and Legal Remembrance Law &
Judiciary Department,
Mantralaya, Mumbai - 400 032.
2 The Registrar General,
High Court, Bombay,
Appellate Side, Mumbai - 400 032. ..Respondents.
Mr. Pradip Vasant Bavkar - Petitioner - party in person.
Mr. C.R. Sonavane, AGP for Respondent no.1/State.
Mr. S.K. Shinde for Respondent no.2.
CORAM : J.P. DEVADHAR & K.K.TATED, JJ.
RESERVED ON : 19/10/2011
PRONOUNCED ON : 16/11/2011.
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JUDGMENT: (PER K.K. TATED, J.)
1 Heard the Petitioner - party in person and the learned counsel
for Respondent no.1 and the learned counsel for Respondent no.2.
2 Rule.
3 By consent, Rule made returnable forthwith.
4 By this Petition under Articles 226 of the Constitution of India,
the Petitioner challenges the order dated 26th February, 2010 passed by
the Principal Secretary and Legal Advisor, Law and Justice
Department, Mantralaya, Mumbai - 400 032 for compulsory
retirement of the Petitioner from judicial service of the State of
Maharashtra.
5 Relevant facts of the matter are as under:
In the year 1976, the Petitioner completed his Bachelor of Arts
degree and thereafter in the year 1981 LL.B degree. After completing
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the Law degree, the Petitioner enrolled as an Advocate with the Bar
Counsel of Maharashtra and Goa. After completion of 15 years
practice as an advocate he joined judicial service on 19th November,
1997 as Judge, City Civil and Sessions Court, Greater Bombay
(District Judge cadre). Thereafter, he was appointed as Special Judge
for TADA Designated Court, Greater Bombay on 26th September,
2005. From 20th November, 2007 to 4th March, 2009 the Petitioner on
transfer was posted as Solicitor-cum-Joint Secretary to the
Government of Maharashtra, Mantralaya, Mumbai. On 5th March,
2009 the Petitioner came to be transferred and posted as Principal
District and Sessions Judge, Amaravati. Thereafter, the Petitioner was
transferred as Principal District and Sessions Judge, Sangli. During
his tenure as a City Civil Court Judge, the Guardian Judge has written
his Confidential Reports (hereinafter referred to as "CR"). The CR's
for the year ending March, 2005 and March, 2006 (Exhibit R and S)
wherein certain adverse remarks were made against the Petitioner.
6 On the basis of the said adverse remarks and considering his
service record, Review Committee of the High Court of Judicature at
Bombay took decision on 27th January, 2010 as per Rule 19 of the
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Maharashtra Judicial Services Rules, 2008 read with Rule 10 (4) of
the Maharashtra Civil Services (Pension) Rules, 1982 to recommend
to the Government for compulsory retirement of the Petitioner on his
attaining the age of 55 years. Both the Adverse CR's for the year
2004-2005 and 2005-2006 are reproduced herewith:
"Exhibit - "R"
Confidential Report on the work of Shri P.V. Bavkar, Judge, City Civil
Court, for the reporting period year ending March, 2005.
1 Description of posts held and : Judge, City Civil Court,
particulars of posting during Bombay.
the period under report.
2 Special powers, if any
conferred. : ---
3 Knowledge of law and
procedure. : Poor.
4 What is the quality of his : Poor.
judgments as regards
reasoning, clarity and
precision.
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5 Is he industrious and prompt
in Disposal of cases? : )
a) Disposal of old cases : )
b) Disposal of other cases : )
c) Disposal of cases through ) Yes.
Lok Adalat. : )
d) Work done for promoting )
Alternative Dispute )
Resolution. : )
6 Remarks about supervision of
the distribution of business
and his control over the
subordinate courts. : Fair.
7 Remarks about his admini-
strative work. : Fair.
8 Remarks about his attitude
towards his superiors,
subordinates and
colleagues. : Fair.
9 Remarks regarding his
behavior towards members ) Dubious behavior
of the Bar & the public. : ) Integrity is seriously
) in doubt.
10 Remarks about reputation ) Does not deserve
and integrity, impartiality ) to be retained in
and character. : ) service.
11 Whether he is under probation/
under extended period of
probation. : N.A.
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12 Whether he under went
training of JOTI during
period of review and if so,
remarks of Director. : N.A.
13 If he fit for taking additional
responsibility. :
14 Whether he was placed under
suspension/facing any
Departmental enquiry
during period review?
ig : No.
15 Whether the Officer was
warned/visited with
penalty during period
under review? : No.
16 General Remarks, if any : Corrupt judicial officer.
17 Net result : A+ Outstanding, A Very Good,
B+ Positive Good, B Good.
C - Average, C Below Average.
C Below average.
Place: Mumbai. Reporting Authority,
Date: 8/12/08. sd/-
Hon'ble Dr. Justice D.Y. Chandrachud
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Exhibit - "S"
Confidential Report on the work of Shri P.V. Bavkar, Judge, City Civil
Court, for the reporting period year ending March, 2006.
1 Description of posts held and : Judge, City Civil Court,
particulars of posting during Bombay.
the period under report.
2 Special powers, if any
conferred. : ---
3 Knowledge of law and
procedure. : Poor.
4 What is the quality of his : Poor.
judgments as regards
reasoning, clarity and
precision.
5 Is he industrious and prompt
in Disposal of cases? : )
a) Disposal of old cases : )
b) Disposal of other cases : )
c) Disposal of cases through ) Yes.
Lok Adalat. : )
d) Work done for promoting )
Alternative Dispute )
Resolution. : )
6 Remarks about supervision of
the distribution of business
and his control over the
subordinate courts. : Fair.
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7 Remarks about his admini-
strative work. : Fair.
8 Remarks about his attitude
towards his superiors,
subordinates and
colleagues. : Fair.
9 Remarks regarding his
behaviour towards members ) Lacking in integrity.
of the Bar & the public. : ) Dubious behavior.
) His continuance in
10 Remarks about reputation
ig ) this judiciary is
and integrity, impartiality ) undesirable.
and character. :)
11 Whether he is under probation/
under extended period of
probation. : N.A.
12 Whether he under went
training of JOTI during
period of review and if so,
remarks of Director. : N.A.
13 If he fit for taking additional
responsibility. :
14 Whether he was placed under
suspension/facing any
Departmental enquiry
during period review? : No.
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15 Whether the Officer was
warned/visited with
penalty during period
under review? : No.
16 General Remarks, if any : Serious allegation of
corruption.
17 Net result : A+ Outstanding, A Very Good,
B+ Positive Good, B Good.
C - Average, C Below Average.
C Below average.
Place: Mumbai.
ig Reporting Authority,
Date: 8/12/08. sd/-
Hon'ble Dr. Justice D.Y. Chandrachud
7 Pursuant to the recommendation of the Review Committee of
the High Court of Judicature at Bombay, the Maharashtra State
through the Law and Justice Department passed an order dated 26th
February, 2010 bearing No.CJM-2010/184/(23)K-3 of compulsory
retirement of Petitioner from the judicial service (Ex.A). Immediately,
thereafter, the Petitioner made representation to the Hon'ble Chief
Justice, High Court of Judicature at Bombay for review or
reconsideration of the decision taken by the Review Committee of the
Hon'ble High Court of Judicature at Bombay, on the basis of which
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the Petitioner was to be compulsorily retired. Thereafter, the
Petitioner addressed a letter dated 12th March, 2010 to the Registrar
General, High Court, Appellate Side, Bombay to stay the execution
and service of the order for his compulsory retirement on completion
of 55 years of age. In the said letter, in second para, the Petitioner
stated that on 10th March, 2010 at about 3 p.m. he met the Hon'ble
Chief Justice. He further stated that the Hon'ble Chief Justice was
kind enough and assured him that he would be given personal hearing
and before giving the hearing, order for compulsory retirement would
not be served upon him; but without giving him hearing, his
representation dated 8th March, 2010 was rejected by the High Court
on 6th April, 2010 and the order passed by the State Government
through Law and Judicial Department dated 26th February, 2010 was
served on the Petitioner on 23rd April, 2010. Being aggrieved by the
said order, the Petitioner filed the present Writ Petition under Article
226 of the Constitution of India.
8 The Petitioner who appeared party in person submits that the
Reporting Judge has written (Adverse) Annual Confidential Report
(hereinafter referred to as "ACR") for the period ending 31st March,
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2005 and 31st March, 2006 on 8th December, 2008, wherein, it is stated
that the Petitioner is corrupt Judicial Officer, his judgment and legal
knowledge is poor and it is expressed that the Petitioner should not be
continued in service. He submits that the said ACR is written either
with prejudiced mind or on the basis of wrong information provided
against the Petitioner with a view to damage the Petitioner's judicial
career and or His Lordship has committed gross error while writing
the said two ACRs on account of mistaken identity. He submits that
the said two ACRs are written by the Reporting Judge on 8th
December, 2008 i.e. after above 3 to 4 years from the relevant period
which again creates a serious doubt about their truthfulness and
correctness. He submits that the said two ACRs are contradictory to
the ACR for the period ending 31st March, 2007 written by the same
Reporting Judge, wherein, His Lordship has observed that the
Petitioner has good knowledge of law and procedure and there is
nothing adverse to suspect integrity and character of the Petitioner and
that the net result is "B Good". The said CR is at Exhibit "T" to the
Petition.
9 He further submits that throughout his career as Judicial Officer,
he has given his best to the job. He has worked with utmost sincerity,
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loyalty and integrity. He submits that his loyalty and integrity was
never doubted. He submits that by taking into consideration his good
service record, the Petitioner was appointed as Special Judge TADA,
Designated Court, Mumbai, he was posted as Solicitor cum Joint
Secretary to the Government of Maharashtra, Law and Justice
Department, Mantralaya, Mumbai, he was transferred and posted as
Principal District and Sessions Judge, Amaravati as well as Sangli.
Considering these facts, the decision taken by the Review Committee,
High Court of Judicature at Bombay dated 27th January, 2010 and the
order passed by the Government of Maharashtra through the Law and
Judiciary Department dated 26th February, 2010 Ex. A is against
justice, equity and good conscience and same is liable to be set aside.
10 He further submits that he received two letters from the
Registrar General, High Court, Bombay dated 19th January, 2010
which were issued to communicate the Petitioner the result of review
of Annual Confidential Report for the period 2004-2005 (ending 31st
March, 2005) and 2005-2006 (ending 31st March, 2006), wherein it is
communicated to the Petitioner that:
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a) Knowledge of law and procedure; Poor.
b) Quality of his judgments as regards
reasoning, clarity and precision: Poor
c) Net result: Below Average.
11 He submits that the said letter also suggested that he should take
note of the said observation and show improvement. The said
communication goes to show that the Reviewing Authority accepted
the comments of the Reporting Judge with regard to column nos. 3, 4
and 7 of the ACR in question and that the Reviewing Authority have
not accepted the adverse remark of the Reporting Authority with
regard to the integrity, behavior and reputation of the Petitioner.
Therefore, in those letters, there is no reference of the remarks passed
in column nos. 9, 10 and 16 when the Review Authority is not
agreeable to those adverse remarks which support the contention of
the Petitioner that the said adverse remarks are baseless, incorrect and
unjust.
12 He further submits that he made a representation to the Chief
Justice, Bombay High Court and requested for personal hearing.
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Though the same was assured by the Chief Justice, without giving any
personal hearing the impugned order came to be issued on 26th
February, 2010 and served on him on 23rd April, 2010. Therefore,
without hearing the Petitioner in person, the said impugned order
issued by the Law and Judiciary Department is against justice, equity
and good conscience and same is liable to be set aside.
13 The Petitioner further submits that due to mistaken identity the
Reporting judge must have recorded those adverse remarks in the two
ACRs because in the subsequent year the same Judge had written
about his integrity as good. Therefore, on this count the impugned
order dated 26th February, 2010 is also liable to be set aside.
14 During the course of hearing, the Petitioner in writing submitted
grounds for challenging the ACRs for the period 2004-2005 and
2005-2006 which are as follows:
"1 That the said ACR's were written after a lapse of
about 3-4 years for the period ending in one
stroke on 8/12/2008 and that the Reporting
Authority had not perused the service record."
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"2 That the Reporting Authority, without taking any
efforts to ascertain the correct and true things
seems to have relied upon absolutely wrong,
incorrect and false information which seems to
have been provided to spoil my judicial career.
The Reporting Authority on the basis of such
information seems to have formed absolutely
incorrect and wrong opinion and thereby has
committed gross error in taking adverse entries."
"3 That the available record, earlier ACR's and facts
and circumstances shows that the disputed ACR's
are required to be kept aside it being absolutely
wrong and incorrect."
"4 That the language used and the adverse entries
recorded in the said ACR's are sufficient to infer
that it is an outcome of grudge towards me and
therefore the same are not free from doubt
especially when the other record is good."
"5 That the adverse entries are not approved and
confirmed by reviewing authority and therefore,
the adverse entries lost its significance."
"6 That the guidelines fixed for writing ACR's were
totally ignored and kept aside by the Reporting
Authority which suggest and point out that the
Authority has acted in gross negligent and
careless manner and have recorded incorrect and
absolutely baseless and wrong entries."
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"7 Perhaps it may be a case of mistaken identity as
there is no reference in the said disputed ACR's
that I was the then Joint Secretary and Solicitor
to the Government of Maharashtra L & J D
Mantralaya, though the said ACR's were written
on 8/12/2008 and on the relevant date I was not
a City Civil Judge."
"8 That the ACR for the period ending March 2007
written by the same Reporting Authority is totally
contrary to the disputed ACR's and the net result
is recorded as good in all respect which again
goes to show that the adverse entries recorded in
disputed ACR's are either based on false and
wrong information provided or that the Authority
has committed error and took adverse entries
without there being any substance."
"9 The record available in the office of Respondent
no.2 goes to show that the adverse entries
recorded in disputed ACR's are absolutely wrong
and incorrect."
15 In support of his contention, the Petitioner relied on following
authorities:
1) Baikuntha Nath Das vs. Chief District Medical Officer,
Baripada reported in 1992 SC 168.
2) M.S. Bindra vs. Union of India and Others, reported in
(1998) SCC 310.
3) Yoginath Bagade vs. State of Maharashtra reported in 1999
(7) SCC 739.
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4) Brij Mohan Singh Chopra vs. State of Punjab reported in
1987 (2) SCC 188.
16 The Petitioner, thus, urges that since there was no material on
the basis on which the impugned ACRs could be recorded or order of
compulsory retirement could be passed, the impugned order cannot
be upheld.
In the matter of Baikunta Nath Das vs. Chief Officer,
Baripada reported in 1992 SC 168, the Supreme Court made the
following observations:
"30. Another factor to be borne in mind is this: most
often, the authority which made the adverse remarks and
the authority competent to retire him compulsorily are
not the same. There is no reason to presume that the
authority competent to retire him will not act bonafide
or will not consider the entire record dispassionately. As
the decided cases show, very often, a Review
Committee consisting of more than one responsible
official is constituted to examine the cases and make
their recommendation to the Government. The Review
Committee, or the government, would not naturally be
swayed by one or two remarks, favorable or adverse.
They would form an opinion on a totality of
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consideration of the entire record - including
representations, if any, made by the government servant
against the above remarks - of course attaching more
importance to later period of his service. Another
circumstance to be borne in mind is the unlikelihood of
succession of officers making unfounded remarks
against a government servant."
"31. We may not be understood as saying either that
adverse remarks need not be communicated or that the
representations, if any, submitted by the government
servant (against such remarks) need not be considered or
disposed of. The adverse remarks ought to be
communicated in the normal course, as required by the
Rules/orders in that behalf. Any representations made
against them would and should also be dealt with in the
normal course, with reasonable promptitude. All that we
are saying is that the action under F.R. 56 (j) (or the
Rule corresponding to it) need not await the disposal or
final disposal of such representation or representations,
as the case may be. In some cases, it may happen that
some adverse remarks of the recent years are not
communicated or if communicated, the representation
received in that behalf are pending consideration. On
this account alone, the action under F.R. 56 (j) need not
be held back. There is no reason to presume that the
Review Committee or the Government, if it chooses to
take into consideration such uncommunicated remarks,
would not be conscious or cognizant of the fact that they
are not communicated to the government servant and
that he was not given an opportunity to explain or rebut
the same. Similarly, if any representation made by the
government servant is there, it shall also be taken into
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consideration. We may reiterate that not only the
Review Committee is generally composed of high and
responsible officers, the power is vested in Government
alone and not in a minor official. It is unlikely that
adverse remarks over a number of years remain
uncommunicated and yet they are made the primary
basis of action. Such an unlikely situation if indeed
present, may be indicative of malice in law. We may
mention in this connection that the remedy provided by
Article 226 of the Constitution is no less an important
safeguard. Even with its well-known constraints, the
remedy is an effective check against mala fide, perverse
or arbitrary action.
At this stage, we think it appropriate to append a note of
clarification. What is normally required to be
communicated is adverse remarks - not every remark,
comment or observation made in the confidential rolls.
There may be any number of remarks, observations and
comments, which do not constitute adverse remarks, but
are yet relevant for the purpose of F.R. 56 (j) or a Rule
corresponding to it. The object and purposes for which
this power is to be exercised are well-stated in J.N.
Sinha (AIR 1971 SC 40) and other decisions referred
supra."
"32. The following principles emerge from the above
discussion:
(i) An order of compulsory retirement is not a
punishment. It implies no stigma nor any suggestion of
misbehavior.
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(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 a 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 favorable 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. That circumstance by itself
cannot be a basis for interference.
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Interference is permissible only on the grounds
mentioned in (iii) above. This aspect has been discussed
in paras 29 to 31 above."
18 In the matter of M.S. Bindra vs. Union of India and Others,
reported in 1998 SCC 310, the Supreme Court held that the want of
materials could not justify the conclusion. The Court observed that
the Judicial Officer cannot be condemned of "doubtful integrity" on
the mere hunch, the doubt should be of such a nature which
reasonably and consciously entertainable by reasonable person on the
given materials and consciously entertain able by reasonable person
on the given material and only then there is justification to stamp an
Officer with the label "doubtful integrity" and that no one becomes
dishonest all of a sudden. This decision is distinguishable on facts.
In that case officer of Indian Revenue Service was compulsorily
retired as his integrity was doubted on the basis of three specific cases
decided by him and other material. He was unsuccessful before CAT.
Hence he appealed to the Supreme Court. The Apex Court considered
those cases and found that the three cases which formed the basis for
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proceeding against the appellant do not reveal anything for which
appellant's integrity should have been doubted and allowed the appeal.
The Apex Court in Rajendra Singh Verma ( dead ) through L.Rs.
( supra ) have considered the connotation of "material" appearing in
that decision. At para 119 of the report their Lordships as regards the
material on the basis of which the adverse remarks may be recorded
state thus, " while considering the case of a judicial officer it is not
necessary to limit the material only to written complaints or "tangible"
evidence pointing finger at the integrity of judicial officer. Such
evidence may not be forthcoming in such cases." Their Lordships at
para 123 of the report laid down, "When even verbal repeated
complaints are received against a judicial officer or on enquiries,
discreet or otherwise, the general impression created in the minds of
those making enquiries or the Full Court is that concerned judicial
officer does not carry good reputation, such discreet enquiry and/or
verbal complaints would constitute material on the basis of which the
ACR indicating that the integrity of the officer is doubtful can be
recorded".
19 In the matter of Yoginath Bagade vs. State of Maharashtra
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reported in 1999 (7) SCC 739 in para 51, the Supreme Court observed
as under:
"51 UNDER Article 235 of the Constitution, the High
Court has a duty to protect the officers of the
subordinate judiciary from unscrupulous litigants and
lawyers, In Ishwar Chand Jain vs. High Court of Punjab
& Haryana & Anr. AIR 1988 SC 1395, it was, inter alia,
observed that the High Court while exercising its power
of control over the subordinate judiciary is under a
Constitutional obligation to guide and protect judicial
officers. It was further observed that an honest and strict
judicial officer is likely to have adversaries in the
mofussil courts; if trifling complaints relating to judicial
orders which may have been upheld by the High Court
on the judicial side are entertained, no judicial officer
would feel protected; and it would be difficult for him to
discharge his duties honestly and independently. It is,
therefore, imperative for the High Court to protect its
honest judicial officers by ignoring ill-conceived or
motivated complaints made by the unscrupulous lawyers
and litigants."
In that case the judicial officer was dismissed as the
Disciplinary Committee disagreeing the Enquiry officer held that the
charges leveled against the appellant judicial officer were proved.
Disciplinary Committee without giving opportunity of hearing held
that the charges levied against him were proved. In Appeal the Apex
Court found that the Disciplinary Committee was wholly in error in
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disagreeing with the findings recorded by the Enquiry officer and the
charges levied against the appellant were not proved. Hence the
appeal was allowed.
20 In the matter of Brij Mohan Singh vs. State of Punjab
reported in 1987(2) SCC 188, the Apex Court held that while
considering the question of premature retirement it may be desirable
to make an overall assessment of the Government Servants record, but
while doing that, more value should be attached to the CRs pertaining
to the years immediately preceding such consideration. This authority
is also distinguishable on facts. In the present case, the two CR's for
the year 2004-2005 and 2005-2006, the present Petitioner's integrity
was found doubtful and he was reported to be corrupt judge, and these
remarks cannot be obliterated by the absence of such remarks in the
CR for the year immediately proceeding the consideration.
In this connection their Lordships of the Apex
Court in the case of Gajendra Singh Verma ( supra ) at para 115 of
the report state thus, " What weight should be attached to earlier
entries as compared to recent entries is a matter of evaluation, but
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there is no matter of doubt that consideration has to be of the entire
service record. The fact that an officer, after an earlier adverse entry,
was promoted does not wipe out earlier adverse entry at all".
21 On the basis of these submissions and the authorities, the
Petitioner submits that the impugned order passed by Respondent
no.1 dated 26th February, 2010 is liable to be set aside and the
Respondents be directed to forthwith reinstate the Petitioner to his
original post (District and Sessions Judge) with all consequential
benefits such as continuity in service, payment of full back wages on
the date of premature retirement till reinstatement and other service
benefits. We have already indicated that the authorities relied upon by
the Petitioner are distinguishable on the facts and the subsequent
decisions of the Apex Court fully explain away the grounds on which
the Petitioner challenged the order of his compulsory retirement.
22 On the other hand, Respondent no.2 filed an affidavit 27th April,
2011 Nizamoddin A. Jamadar, Registrar (Legal and Research) High
Court of Bombay for opposing the present Petition. The learned
counsel appearing on behalf of Respondent no.2 submits that there is
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no substance in the present Petition and the same is liable to be
dismissed with costs. He submits that the Review Committee took
decision on 27th January, 2010 after considering the Adverse
Confidential Reports (ACRs) of Petitioner for the year 2004-2005 and
2005-2006 and considering the overall performance of the Petitioner.
Pursuant to the said recommendation of the Review Committee, the
Law and Judiciary Department passed the impugned order dated 26th
February, 2010 in terms of Rules 17 and 19 of Chapter 5 of the
Maharashtra Judicial Service Rules, 2008 and in terms of Sub-Part (I)
of Part-A of Sub-rule 4 of Rule 10 of the Maharashtra Civil Services
(Pension) Rules, 1982 of compulsory retirement of Petitioner on
completion of his 55 years age in public interest. He submits that the
Review Committee of Hon'ble Judges of the High Court considered
the entire relevant material, evaluated overall performance of the
Petitioner and assessed the importance of ACRs for the years
2004-2005 and 2005-2006, the Review Committee did not take into
consideration the Reporting Judge's remarks in ACRs so far as
reputation and integrity of the Petitioner for the years 2005-2006. He
submits that on scrutiny of the service record of the Petitioner, the
following facts emerged:
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"a) Although the disposal of the Petitioner was
satisfactory and noteworthy, the net result of his
ACRs for the years 2004-2005 and 2005-06 was
rated "Below Average"
b) It was mentioned in the ACR for the years
2004-2005 and 2005-2006 that his knowledge of
law and procedure was poor. Same was the
remark about the quality of the judgment.
c) As far as reputation and integrity is concerned,
the Hon'ble Guardian Judge, Hon'ble Dr. Justice
D.Y. Chandrachud opined in ACR as follows:
2004-2005 Dubious behavior, integrity is
seriously in doubt. Does not deserve to be
retained in service.
2005-2006 Lacking in integrity, Dubious
behavior. His continuance in the judiciary is
undesirable.
In the ACR for the years 2004-2005 the general
remark was "Corrupt Judicial Officer". Whereas
in the ACR 2005-2006, the general remark was,
"Serious allegation of corruption".
23 He submits that on the basis of these remarks the Review
Committee of Hon'ble Judges of the High Court, recommended to the
Government for compulsory retirement of the Petitioner at the age of
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55 years. He submits that the decision of the Hon'ble Review
Committee was duly communicated to the Government of
Maharashtra, Law and Judiciary Department, Mantralaya, Mumbai by
communication dated 5th February, 2010. He submits that in the ACR
of Petitioner were written by the Guardian Judge for the year ending
31st March, 2005 and 31st March, 2006. The Petitioner was working as
a Judge, City Civil and Sessions Court, Greater Bombay, therefore,
considering the Petitioner's overall performance the Guardian Judge
made those adverse remark in his CR.
24 He submits that the decision taken by the Review Committee on
6th April, 2010 was communicated to the Petitioner on 19th April, 2010
and finally he was served with the impugned order of compulsory
retirement on 23rd April, 2010. Respondent no.2 considered the
Petitioner's representation dated 8th March, 2010 and the same was
rejected on 6th April, 2010. He submits that it is sufficient to take an
action against the Judicial Officer if it is found that his integrity is
doubtful. In the present case, the Guardian Judge specifically made
remarks in Petitioner's two ACR about corruption i.e. "(a) 2004-2005:
Dubious behavior, integrity is seriously in doubt. Does not deserve to
be retained in service. (b) 2005-2006: Lacking in integrity, dubious
29 wp 5856.10.doc
behavior. His continuance in the judiciary is undesirable. In the ACR
for 2004-2005 the general remark is "corrupt judicial officer".
Whereas in ACR 2005-2006 general remark is "serious allegations of
corruption.'' Though the said remarks were not communicated to the
Petitioner, same cannot lose its value at the time of taking an action
against the Petitioner. He further submits that the Judicial Officer's
honesty and integrity should be reflected in their overall reputation.
There may not be a written complaint against the Judicial Officer
about the corruption but the overall performance can make out those
facts. He further submits that at the time of recommending the
Petitioner's premature retirement the Review Committee has followed
the procedure described by the law. In support of these submissions
the learned counsel appearing on behalf of Respondent no.2 relies on
the following authorities:
(1) Judgment dated 10th September, 2010 passed by the Apex Court
in the mater of Pyare Mohanlal Vs. State of Jharkhand and Others
reported in 2010 (10) SCC 693. In that case, the Apex Court held that
law requires the authority to consider the entire service record of the
employee while assessing whether he can be given compulsory
30 wp 5856.10.doc
retirement irrespective of the fact that adverse entries had not been
communicated to him and the Officer had been promoted earlier in
spite of those adverse entries. More so, a single adverse entry
regarding the integrity of an Officer even in the remote past is
sufficient to award compulsory retirement. Para 29 of that authority
reads thus:
"29. 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 be taken into account for the
purpose of assessing an officer for compulsory
retirement. The petitioner has not disclosed on what
dates the representations against the adverse entries had
been made. The petitioner had not challenged the said
adverse entries, rather he considered it appropriate to
challenge only the order of compulsory retirement
which has been a consequential effect of such adverse
entries. The law requires the Authority to consider the
"entire service record" of the employee while assessing
31 wp 5856.10.doc
whether he can be given compulsory retirement
irrespective of the fact that the adverse entries had not
been communicated to him and the officer had been
promoted earlier in spite of those adverse entries. More
so, a single adverse entry regarding the integrity of an
officer even in remote past is sufficient to award
compulsory retirement. The case of a Judicial Officer is
required to be examined, treating him to be differently
from other wings of the society, as he is serving the
State in a different capacity. The case of a Judicial
Officer is considered by a Committee of Judges of the
High Court duly constituted by Hon'ble the Chief Justice
and then the report of the Committee is placed before
the Full Court. A decision is taken by the Full Court
after due deliberation on the matter. Therefore, there is
hardly any chance to make the allegations of non-
application of mind or mala fide."
(2) He also relied on the judgment in the matter of Rajendra Singh
Varma (Dead) through L.Rs. vs. Lt. Governor of NCT of Delhi &
Another reported in 2011 (10) SCALE 315. In that authority the
Apex Court considered the several issues in respect of compulsory
retirement at the age of 50/55 years. The Apex Court also considered
the effect of honesty and integrity of a Judicial Officer, non
communication of adverse remark, delay in making entry of adverse
remark in CR, subsequent improvement of a Judicial Officer and the
procedure to be followed for taking action against a Judicial Officer.
32 wp 5856.10.doc
The learned counsel appearing on behalf of Respondent no.2 submits
that over all the entire case of the Petitioner is squarely covered by this
judgment. He mainly relies on para 45, 88, 92, 98, 99, 115 and 119
which read thus:
" 45. 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. As explained by this Court in Chandra Singh and
others Vs. State of Rajasthan & another (2003) 6 SCC
545, the power of compulsory retirement can be
exercised at any time and that the power under Article
235 in this regard is not in any manner circumscribed
by any rule or order. What is explained in the said
decision by this Court is that Article 235 of the
Constitution of India enables the High Court to assess
the performance of any judicial officer at any time with
a view to discipline the black sheep or weed out the
deadwood, and this constitutional power of the High
Court cannot be circumscribed by any rule or order.
Moreover while upholding the orders of compulsory
retirement of judicial officers who were working in the
State of U.P., following weighty observations have been
made by this Court in para 13 of decision in case of
33 wp 5856.10.doc
Nawal Singh vs. State of U.P. and another (2003) 8
SCC 117:"
"13. It is to be reiterated that for keeping the
stream of justice unpolluted, repeated scrutiny of
service records of judicial officers after a specified
age/completion of specified years of service provided
under the Rules is a must by each and every High Court
as the lower judiciary is the foundation of the judicial
system. We hope that the High Courts would take
appropriate steps regularly for weeding out the dead
wood or the persons polluting the justice delivery
system."
"88.Compulsory retirement from service is not
considered to be a punishment. Under the relevant
rules, an order of dismissal is a punishment laid on a
Government servant when it is found that he has been
guilty of misconduct or the like. It is penal in character
because it involves loss of pension which under the
Rules have accrued in respect of the service already put
in. An order of removal also stands on the same footing
as an order of dismissal and involves the same
consequences, the only difference between them being
that while a servant who is dismissed is not eligible for
re-appointment, one who is removed is. A compulsory
retirement is neither dismissal nor removal and differs
from both of them, in that it is not a form of punishment
prescribed by the rules and involves no penal
consequences, in as much as the person retired is
entitled to pension and other retiral benefits,
proportionate to the period of service standing to his
credit.
34 wp 5856.10.doc
92. In State of U.P. and another vs. Biharilal (supra),
this Court has ruled that before exercise of the power to
retire an employee compulsorily from service, the
authority has to take into consideration the overall
record, even including some of the adverse remarks,
though for technical reasons, might have been expunged
on appeal or revision. What is emphasised in the said
decision is that in the absence of any mala fide exercise
of power or arbitrary exercise of power, a possible
different conclusion would not be a ground for
interference by the Court/Tribunal in exercise of its
power of judicial review. According to this Court, what
is needed to be looked into is whether a bona fide
decision is taken in the public interest to augment
efficiency in the public service. Again, a three Judge
Bench of this Court in Union of India vs. V.P. Seth and
another 1994 SCC (L&S) 1052, has held that
uncommunicated adverse remarks can be taken into
consideration while passing the order of compulsory
retirement. The bench in the said case made reference to
Baikuntha Nath Das vs. Chief District Medical Officer,
Baripada (1992) 2 SCC 299, as well as Posts and
Telegraphs Board vs. C.S.N. Murthy (1992) 2 SCC 317,
and after reiterating, with approval, the principles stated
therein, has laid down firm proposition of law that 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. Applying the ratio laid down in
the above-mentioned two cases to the facts of the
present cases, this Court finds that the authorities
concerned were justified in relying upon the adverse
entry made against the two appellants and the deceased
officer in the year 2000 indicating that their integrity
35 wp 5856.10.doc
was doubtful alongwith other materials. Here in these
cases, the ACRs for the year 2000 were communicated
to the three officers but before they could exercise the
option given to them to make representation against the
same, the orders of compulsory retirement were passed.
When an uncommunicated adverse entry can be taken
into consideration, while passing order of compulsory
retirement, there is no reason to hold that adverse entry
communicated, against which opportunity of making
representation is denied, cannot be taken into
consideration at the time of passing order of compulsory
retirement. Merely because the two appellants and the
deceased officer had no opportunity to make
representation against the said entry or that the
representation made against the same was pending,
would not render consideration of the said entry illegal,
in any manner, whatsoever."
"98. In Baikuntha Nath Das case, after referring to
decision of this Court in Brij Mohan Singh Chopra Vs.
State of Punjab (1987) 2 SCC 188, where a three Judge
Bench of this Court has specifically affirmed the
decision rendered in Union of India Vs. M.E. Reddy
(1980) 2 SCC 15, this Court has laid down following
firm proposition of law stated in paragraph 34 of the
reported decision:
"34. The following principles emerge from the above
discussion:
(i) An order of compulsory retirement is not a
punishment. It implies no stigma nor any suggestion of
misbehaviour.
36 wp 5856.10.doc
(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 a 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. That circumstance by itself
cannot be a basis for interference.
37 wp 5856.10.doc
Interference is permissible only on the grounds
mentioned in (iii) above.."
"99.In view of the two three Judge Bench decisions of
this Court mentioned above the contention that adverse
remarks relating to integrity regarding which no
opportunity of making representation was provided or
pending representation was not considered and,
therefore, orders of compulsory retirement were bad in
law cannot be accepted. Therefore, the said contention
is hereby rejected."
"115.On consideration of rival submissions, this Court
finds that there is no manner of doubt that the nature of
judicial service is such that the High Court cannot
afford to suffer continuance in service of persons of
doubtful integrity. Therefore, in High Court of
Judicature at Bombay Through its Registrar Vs.
Shirishkumar Rangrao Patil and Another, (1997) 6 SCC
339, this Court emphasized that it is necessary that
there should be constant vigil by the High Court
concerned on its subordinate judiciary and self
introspection. It is well settled by a catena of decisions
of this Court that while considering the case of an
officer as to whether he should be continued in service
or compulsorily retired, his entire service record upto
that date on which consideration is made has to be taken
into account. What weight should be attached to earlier
entries as compared to recent entries is a matter of
evaluation, but there is no manner of doubt that
consideration has to be of the entire service record. The
fact that an officer, after an earlier adverse entry, was
promoted does not wipe out earlier adverse entry at all.
38 wp 5856.10.doc
It would be wrong to contend that merely for the reason
that after an earlier adverse entry an officer was
promoted that by itself would preclude the authority
from considering the earlier adverse entry. When the
law says that the entire service record has to be taken
into consideration, the earlier adverse entry, which
forms a part of the service record, would also be
relevant irrespective of the fact whether officer
concerned was promoted to higher position or whether
he was granted certain benefits like increments etc.
Therefore, this Court in State of Orissa and Others Vs.
Ram Chandra Das, (1996) 5 SCC 331, observed as
under in paragraph 7 of the reported decision :-
";........ it is settled law that the Government is required
to consider the entire record of service...... .... We find
that selfsame material after promotion may not be taken
into consideration only to deny him further promotion,
if any. But that material undoubtedly would be available
to the Government to consider the overall expediency or
necessity to continue the government servant in service
after he attained the required length of service or
qualified period of service for pension."
"119.The argument that material was not supplied on
the basis of which "`C' Doubtful Integrity" was
awarded to the appellants and, therefore, the order of
compulsory retirement is liable to be set aside has no
substance. Normally and contextually word `material'
means substance, matter, stuff, something, materiality,
medium, data, facts, information, figures, notes etc.
When this Court is examining as to whether there was
any `material' before the High Court on the basis of
which adverse remarks were recorded in the confidential
39 wp 5856.10.doc
reports of the appellants, this `material' relates to
substance, matter, data, information etc. While
considering the case of a judicial officer it is not
necessary to limit the `material' only to written
complaints or `tangible' evidence pointing finger at the
integrity of the judicial officer. Such an evidence may
not be forthcoming in such cases."
(3) He also relied on judgment in the matter of Nawal Singh vs.
State of U.P. and another reported in AIR 2003 SC 4303. In that
case, the Apex Court held that source for taking action against Judicial
Officer may or may not be in writing in written complaints only,
action can be taken against Judicial Officer on the basis of his overall
performance.
(4) He also relied on judgment in the matter of Posts and
Telegraphs Board and Others vs. C.S.N. Murthy reported in 1992
(2) SCC 317. In that case, the Apex Court held that even though the
earlier record of an employer is through out good but if latest adverse
remarks goes against him then same constitute sufficient material for
taking action against him.
25 On the basis of these submissions the learned counsel appearing
on behalf of Respondent no.2 submits that considering the latest
40 wp 5856.10.doc
judgment of the Apex Court in the matter of Rajendra Singh Varma
(dead) through L.Rs. (supra) there is no substance in the present
Petition and the same is liable to be dismissed with costs.
26 The learned counsel appearing on behalf of Respondent no.1
also opposed the present Petition on the same grounds as advanced by
the counsel for Respondent no.2.
27. We have carefully and anxiously considered the grounds on
which the petitioner challenged his ACRs for the period 2004-05 and
2005-06 and the authorities relied upon by him in support of those
challenges and also the submissions of the learned counsel for the
respondent No.2 and the authorities relied upon by him in refuting the
grounds on which the petitioner challenged those ACRs and we find
the grounds on which the petitioner challenged those ACRs are not
valid and they do not in any way vitiate those ACRs. Their Lordships
of the Apex court in the latest judgment in the case of Rajendra
Singh Verma (dead) through L.Rs. referred to above considered
similar grounds and rejected them in the similar circumstances. Their
Lordships observed that it has to be legitimately presumed that the
41 wp 5856.10.doc
Inspecting Judge, before making such remarks of serious nature, acted
responsibly. Thereafter, the Full Court considered the entire issue and
endorsed the view of the Inspecting Judge while recording the ACR of
the appellants in that case. The same is the case herein. The ACRs
herein were recorded by the Guardian Judge and they were endorsed
by the Full court and therefore they cannot be discarded on the
grounds on which the petitioner challenged them. It is pertinent to
note that during the years 2004-2005 and 2005-2006 for which those
ACRs were recorded, the petitioner was stationed at Mumbai as Tada
Court Judge in the City Civil and Sessions Court Greater Bombay, and
the Guardian judge was also stationed at the main seat of the Bombay
High Court, at Mumbai and therefore the Guardian Judge must have
had the sufficient opportunity to consider his judicial work and know
his reputation as judicial officer. During the subsequent years the
petitioner was on deputation at Mantralaya as Solicitor-cum-Joint
Secretary to the Government of Maharashtra, Mumbai and thereafter
the Petitioner was Principal District and Sessions Judge, Amravati and
from there he was transferred as Principal District and Sessions Judge,
Sangli. Hence the Guardian Judge during the period subsequent to the
year 2004-2005 and 2005-2006, must not have found any deficiency
42 wp 5856.10.doc
in the Petitioner's judicial work and must not have noticed any
incidence which affects the reputation of the Petitioner as judicial
officer, and, therefore, in the C.R. for the subsequent year the
Guardian Judge did not write anything against the petitioner; but from
this it cannot be inferred that the serious adverse remarks made for the
year 2004-05 and 2005-06 stand obliterated or erased. There is also
no possibility of making the adverse entries in the ACR on account of
the mistaken identity as alleged by the petitioner; nothing is brought
on record or argued before us to substantiate the allegation that the
adverse entries were made by the Guardian Judge on account of
mistaken identity. As held by the Apex Court in the case of Rajendra
Singh Verma (supra) it is not necessary that the Guardian Judge
should receive the complaints in writing. Thus there is no substance
in the argument advanced by the petitioner in challenging the ACRs
for the years 2004-2005 and 2005-2006 on the basis of which the
impugned order of premature retirement of the petitioner was passed.
28 The integrity is the foremost requirement of a judicial officer.
The great English Jurist and philosopher Francis Bacon has said,
"Judges ought to be more learned than witty, more reverent than
43 wp 5856.10.doc
plausible and more advised than confident. Above all things, the
integrity is their portion and proper virtue. Joseph Addison English
Essayist says, "Justice discards party, friendship and kindred and is
therefore, represented blind". Their Lordships of the Apex Court in the
case of Rajendra Singh Verma (dead) through L.Rs. (supra) at page
345 of the report propound, "Judicial Service is not a service in the
sense of an employment as is commonly understood. Judges are
discharging the functions while exercising the sovereign judicial
power of the State. Their honesty and integrity is expected beyond
doubt. It should be reflected in their overall reputation. There is no
manner of doubt that 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".
29 Their Lordships of the Supreme Court in the case of Rajendra
Singh Verma (dead) through L.Rs. (supra) as regards the
maintenability of a petition under Article 226 or Article 32 of the
Constitution of India challenging the compulsory retirement of
Judicial officer, laid down that when the appropriate authority forms
bonafide opinion that compulsory retirement of Judicial officer is in
44 wp 5856.10.doc
the public interest, the Writ Court under Article 226 or the Apex Court
under Article 32 of the Constitution would not interfere with the order.
The compulsory retirement order passed in the present case by the
State Government on the recommendation of the High Court, does not
cast any stigma on the petitioner. It can not be considered to be an
order for dismissal or removal in the nature of penalty or punishment
and therefore, it cannot be interfered with by this court in the writ
jurisdiction under Article 226 of the constitution of India.
30 In the result, we find that there is no substance in the petition
and it is liable to be dismissed and it is dismissed.
31 Rule is discharged.
32 No order as to costs.
(K.K.Tated, J.) (J.P. Devadhar, J.)
