Dr. Chitra Kiran Bhedi vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 224 Bom

                                                                    912-WP.4594.2012.doc


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              CIVIL APPELLATE JURISDICTION
                        WRIT PETITION NO. 4594 OF 2012




                                                                          
     Dr. Chitra w/o Kiran Bhedi       }




                                                  
     Age - 51 years, Occ. Pensioner,  }
     R/o. Flat No. 8, Ambeshree       }
     Apartment, Bharatkunj Society 1, }
     Erandwane, Pune                  }                   Petitioner
               versus




                                                 
     1. The State of Maharashtra      }
     through Secretary, Law and       }
     Judiciary Department,            }
     Mantralaya, Mumbai               }




                                       
                                      }
     2. The High Court of Judicature
                              ig      }
     at Bombay                        }
     through the Registrar General,   }
     High Court, Mumbai.              }                   Respondents
                            
     Mr. G. T. Kanchanpurkar i/b. Mr. Ajay S.
     Deshpande for the petitioner.
      

     Ms. Sushma Bhende - AGP for respondent
     No. 1.
   



     Mr. P. S. Dani - Senior Advocate with Ms.
     Leena Patil for respondent no. 2.





                                   CORAM :- S. C. DHARMADHIKARI &
                                            G. S. PATEL, JJ.

DATED :- MARCH 2, 2016

ORAL JUDGMENT :- (Per S. C. Dharmadhikari, J.)

1. By this petition under Article 226 of the Constitution of

India, the petitioner prays that by an appropriate writ, order or

direction, the impugned order at annexure 'Q' dated 3 rd October,

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2011, retiring the petitioner in public interest, invoking the

powers under Rule 10(4) of the Maharashtra Civil Services

(Pension) Rules, 1982 read with the provisions of Rule 19 of the

Maharashtra Judicial Services Rules, 2008, be quashed and set

aside, and that the petitioner be reinstated in service with

continuity and full back-wages.

2. It is common ground that Rule 10(4) of the Maharashtra

Civil Services (Pension) Rules, 1982 read with Rule 19 of the

Maharashtra Judicial Services Rules, 2008 has been invoked to

pass the impugned order.

3. This Petition was filed on 7th May, 2012 and the impugned

order recites that the State Government being fully empowered to

pass an order in public interest, having been satisfied that it is

necessary and in public interest to compulsorily retire the

petitioner has passed the same order. At the relevant time, the

petitioner was working as Judge, Family Court, Nagpur. She had

completed the age of 51 years on 30 th September, 2011. In the

public interest, she was retired by dispensing with the

requirement of three months' notice. The petitioner has, thus,

been retired by sanctioning and disbursing her dues for this

period together with all allowances.

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4. The petitioner joined the judicial service as Civil Judge,

Junior Division and Judicial Magistrate First Class on 23 rd

October, 1990. She states that prior to that, she graduated in law

in the year 1984 and registered herself as an advocate of the Bar

Council of Maharashtra and Goa. She started practicing law and

after her appearance at the examination and fulfilling the

requisite eligibility criteria, she was appointed as Civil Judge,

Junior Division and Judicial Magistrate First Class on 23 rd

October 1990. While in service, she completed her post

graduation in law in the year 1999. She rendered services

sincerely and honestly and to the best of her ability. On account of

her hard work and devotion, she earned a substantive promotion

as Civil Judge, Senior Division on 5th June, 2000. She earned yet

another promotion on 28th May, 2001, which was ad-hoc in

nature. The petitioner was given a regular promotion in the cadre

of District Judge on 20th March, 2002. Thus, she has been

working in the cadre of District Judge and while working, she

improved upon her academic qualifications. She was conferred

with a doctoral degree by Dr. Babasaheb Ambedkar Marathwada

University, Aurangabad in the year 2009. She has also been

improving her qualifications as set out in para 5 of the petition.

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5. It is her grievance that till August, 2011 she was never

communicated any adverse remarks in her confidential reports,

save and except the confidential report for the year 2007-08.

That was communicated to her in August 2011. It is only when

she was served with the impugned order that she obtained the

requisite information under the Right to Information Act, 2005.

She has then set out the details of her confidential reports and

from inception. These details are set out in para 6 at pages 4 to 7

of the paper book.

6. She would submit that the confidential reports being more

than 10 years old, in her belief they are not relevant for the

purposes of the present state of affairs or the impugned order.

7. The petitioner states that it was in the very first year after

her promotion on ad-hoc basis as District Judge, that her

confidential reports were graded as "Average" for the year 2001-

02. She states that although the five Judges' committee has rated

her confidential reports to be "Average" in the year 2001-02, the

reporting authority had assessed her performance as "Very

Good". The petitioner states that even this remark of "Average"

and which is adverse, would not be of any significance once she

was promoted on regular basis in the cadre of District Judge on

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20th March, 2002. The petitioner states that this confidential

report has still been relied upon, and which could not have been

done after a lapse of nearly 10 years, to pass the impugned order.

She has also referred to the details of this confidential report. She

has, in para 9 of the petition, pointed out that the remarks "Fair"

so also "Noteworthy" do not appear in the categories which are

specified for the confidential reports. Confidential reports must

contain grading in terms of the scheme as "Outstanding", "Very

Good", "Positively Good", "Good", "Average", "Below Average".

Therefore, nothing that falls outside this scheme is permissible to

be inserted as a remark.

8. At the same time, the petitioner states that the confidential

remarks as far as her posting for the period 11th June, 2002 to 4th

December, 2002 are concerned, were certified to be "Very Good"

by the reporting officer. In the second spell from 5 th December,

2002 to 31st March, 2003 at the same station, the reporting

authority graded her as "Very Good" and against the column

"General Remarks", it was written that she is a hard working,

honest, sincere and a good hand. These remarks of distinct spells

have been graded as "Average" by the five Judges committee of

this Court. It is in these circumstances that in paras 10 and 11

she faults the process of writing of these remarks. She also states

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that it is surprising that in the succeeding year 2004-05 the

gradation in the confidential remarks by the learned Guardian

Judge in his capacity as reviewing authority are "B+". That means

"Positively Good". The reporting authority, however, has assessed

as 'A' i.e. "Very Good". Annexure 'D' is relied upon and this states

that for the following years 2005-06, 2006-07, both reporting and

reviewing authorities have graded her performance as "Good".

9. However, in para 14 of the petition, while presiding over as

a Special Judge of cases under the Maharashtra Control of

Organised Crimes Act, 2002 for cases related to counterfeit

Government Stamps and Stamp Papers for all over Maharashtra

("the Telgi Scam cases" for short), the petitioner has stated that

this was an assignment for her meritorious service of the past.

Meaning thereby, she was appointed to preside over this Court as

a Special Judge on account of her performance in the past. She

sets out the details of these cases in paras 14 and 15 and states

that during the course of the assignment and on account of

annual transfer, she was shifted as Judge of the City Civil Court,

Mumbai on 6th July, 2007. Even there she presided over certain

Courts as a Special Judge. She also came to be transferred as a

Judge of the Family Court at Nagpur. Thus, she states that having

been chosen to preside over important Courts and having been

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assigned special cases, none of the remarks and which are stated

to be adverse are of any significance, and no weightage ought to

have been given to them. It is in these circumstances that she

refers to her representation which dealt with the remarks of

August, 2007 and April, 2008. Those remarks were with regard

to her disposal and which was found to be inadequate. She has

stated that the representation against this was rejected by this

Court by communication dated 11th April, 2008.

10. In para 18, she refers to certain loss of records. Though the

confidential reports for the year ending 31 st March, 2008 were

misplaced, but to her knowledge, they were indeed written by the

reporting and reviewing authorities. This was made known to the

petitioner under communication dated 19th December, 2009 and

thus her confidential reports were instructed to be rewritten.

That is how the details were called for through the Principal

Judge of the city Civil and Sessions Court, Mumbai. The petitioner

believes that her original confidential report was positive but

some mischief and malafides in the misplacement of the service

records/confidential reports has resulted in injustice to her. She

relies upon the information provided to her under the Right to

Information Act, 2005, which reveals that she has been rated

"Good" all throughout. She was held to be capable of shouldering

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additional responsibilities. She relies upon annexure 'I' to the

petition. At the same time, she states that for the year 2009-10

ending on 31st March, 2010, the confidential report carried the

entry "Below Average" by the reviewing authority. In that, he

recorded disagreement with the net result of the reporting

authority. He had graded performance as "Good" and against

general remarks column, he had written "Generally Good". It is in

these circumstances that she would submit that her grading as

"Below Average" would not have been reflecting her performance

throughout. It is indeed unjust, according to her, therefore, that

even though the confidential report for the year 2009-10 came to

be recorded on 28th June, 2011, the administrative committee

confirmed the remarks for the year ending 31 st March, 2009 and

maintained the net result as "Good". If the petitioner is found to

be capable and of shouldering higher responsibilities by a

different administrative committee on 28th June, 2011 based on

the annual confidential report for the year ending 31 st March,

2009, then, according to the petitioner, it is inconceivable that for

the succeeding year, namely, ending on 31st March, 2010, the

general remarks noted as "Below Average" would not have

weighed with the same committee. Thus, the committee could not

be said to be unaware of these general remarks. Therefore, this

dichotomy and distinct difference between the two annual

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confidential reports and remarks in relation thereto have been

highlighted by the petitioner in paras 19 and 20 of the petition.

Thus, the case of the petitioner appears to be that there is some

deliberate act by which her service record has been spoiled and in

that relation, she refers to CBI Case Nos. 111 of 2014, 112 of

2014, 11 of 2014 and Sessions Case No. 550 of 2006. She would

submit that it is only because of a very high powered official of the

State, who was serving as Superintendent of Stamps, that false

allegations were generated against her. The details of all these are

set out in paras 22 to 24 of the petition and then the petitioner

refers to her transfer to Nagpur in April, 2011. She has also

pointed out her difficulties and the general inconvenience faced

by her on account of this transfer. She, therefore, submits that if a

Guardian Judge has assessed her as "Good" and there is nothing

adverse about integrity, impartiality and character, then it

cannot be that her performance and overall could be said to be

poor, below average or her integrity doubtful. It is in these

circumstances, she would submit that the impugned order has a

punitive character and requires interference in our writ

jurisdiction under Article 226 of the Constitution of India. She

has submitted that the order is passed on no material and if there

is at all material before the competent authority, the same does

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not reflect anything by which was necessary to retire the

petitioner compulsorily and in public interest.

11. The writ petition was served on the respondents and a reply

affidavit has been filed by the Registrar (Legal and Research) of

this Court. After general denials, it has been pointed out that the

basis of the challenge to the impugned order and the petition is

that the annual confidential reports are not correct and if these

annual confidential reports and remarks therein are done away

with, the petitioner was fit to be continued beyond 50 years in

service. Thus, all the allegations in the petition are denied and it

is stated that some vague pleas about the malafides or

arbitrariness does not carry the case of the petitioner any

further. Though it is true to say that the petitioner was not

communicated any adverse remarks till the end of August, 2011,

save and except the confidential report of the year 2007-08, it is

incorrect to say that anybody in the high power committee of this

Court had acted arbitrarily. It is incorrect to assume that a

particular remark or a particular annual confidential report and

of a particular year has influenced the committee in

recommending to the State that it would be desirable to retire the

petitioner from service on attaining 50 years of age. It is an

overall assessment based on the petitioner's performance. It is

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clear that the recommendations of this Court are based on the

materials including the remarks in the annual confidential

reports. Thus, merely because the annual confidential reports

contain a particular remark and which could be said to be

favourable, it is not proper to assume that the petitioner is

proceeded against punitively. It is in these circumstances that the

order is justified. Thus, all the allegations in the petition have

been denied.

12. There is a rejoinder affidavit which is filed by the petitioner,

seeking to deal with the affidavit in reply and it is nothing but a

reiteration of the averments in the petition. Further reliance is

placed therein on certain judgments of the Hon'ble Supreme

Court of India and this Court, to which we will make a reference

while dealing with the petitioner's arguments.

13. It is on the above material that we have heard the

petitioner's counsel Mr. Deshpande. The petitioner's counsel has

submitted that the annual confidential reports for the year 2002-

03 are not adverse. Our attention is invited to pages 117 and 119

of the paper book and, pages 36 and 41, to certain remarks

recorded in the annual confidential reports and it is urged that

"Fair" and "Satisfactory" are not the remarks which could be

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recorded in the confidential reports. In any event, according to

the counsel, the cumulative effect of all these remarks cannot be

adverse, for one cannot ignore the positive remarks in the annual

confidential reports. If, save and except for the year 2007-08, the

annual confidential remarks contain nothing adverse, then, it is

impossible that a conclusion can be reached suddenly that it is

necessary to retire the petitioner in public interest. The oral

arguments are also supported by a detailed written note. That

written note was handed over at the conclusion of the arguments.

14. The thrust of Mr. Deshpande's arguments is that this is a

case of no material at all. Once there was no material to arrive at

the satisfaction that the judicial officer is required to be retired

compulsorily and in public interest, then, the order must be

quashed and set aside. Mr. Deshpande has submitted that if

knowledge of law and procedure and the quality of judgments is

fair, the disposal is noteworthy, reputation, integrity, impartiality

and character are good, then, the net result could not have been

"Average". If the petitioner's performance has been throughout

rated as "Good", then only on account of some intermittent

remarks of the above nature, the overall assessment could not

have led to the conclusion that the petitioner was unfit to be

retained in service.

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15. It is submitted that the un-communicated adverse remarks

cannot form the basis for the satisfaction necessary for

compulsorily retiring a public servant and particularly a judicial

officer. The petitioner entertains the belief that the decision is

based predominantly on the alleged lack of integrity and

character. Mr. Deshpande would submit that if the annual

confidential reports are not ready within a reasonable time, then,

legal malafides are apparent. It is submitted that belated

assessment and review of the adverse remarks by the Guardian

Judge would mean that this Court does not fulfill its

Constitutional obligation and duty to fairly judge and assess the

performance of the members of District Judiciary. It is

emphasised that if the judicial work of the petitioner is not below

the required standards, then, the justification to retire her and

that too in public interest is vitiated for non-application of mind

and for ignoring the relevant and germane materials. This is a

case, therefore, where the order can be termed as based on no

material. It is, therefore, submitted that the same be quashed and

set aside.

16. Reliance is placed on number of judgments, copies of which

have been annexed to the written note of submissions and

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compilations of which were tendered during the course of

arguments.

17. On the other hand, Mr. Dani, learned Senior Counsel

appearing for respondent no. 2, has submitted that while

scrutinising the legality and validity of an order of compulsory

retirement, this Court does not function as an appellate authority

or an appellate Court. It cannot sit in judgment or in appeal over

the conclusion reached by the administrative committee. Mr.Dani

would submit that the order of compulsory retirement does not

cast any stigma. It is not punitive in nature. It is not based on

mere remarks for a year or so, but on an overall assessemnt of

the performance to find out whether the officer is fit to be

continued in judicial service. Once the assessment is made in an

overall manner and taking into account all relevant and germane

factors, then no arbitrariness or malafides can be attributed to

the authorities. Just as it is the duty of this Court to protect

honest and hardworking judicial officers, equally it is its

Constitutional duty to assess their performance periodically to

determine their fitness for continuance in judicial service. Those

inefficient would have to be chopped off or their services done

away with in order to protect the larger public interest. In the

circumstances, he would justify the satisfaction reached and

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consequently the impugned order. Mr. Dani places reliance on the

following judgments:-

(a) Pyare Mohan Lal vs. State of Jharkhand and Ors.

(2010) 10 SCC 693) .

(b) Rajendra Singh Verma (dead) through legal heirs and

Ors. vs. Lieutenant Governor (NCT of Delhi) and Ors. (2011) 10 SCC 1 .

(c)

R. C. Chandel vs. High Court of Madhya Pradesh and Anr. (2012) 8 SCC 58 .

18. For properly appreciating the rival contentions, it would be

worthwhile referring to the relevant Rules.

19. The Maharashtra Civil Services (Pension) Rules, 1982 have

been relied upon as the relevant Rule in this regard. It is common

ground and undisputed that these Rules also govern the members

of the judicial service of the State. In addition, the Rules of 2008,

which have been pressed into service also would authorise and

empower the Court to make the requisite recommendations. In

this regard, the Maharashtra Civil Services (Pension) Rules,

1982 contains Rule 10. That Rule reads as under:-

"10. Age of retirement.

(1) Except as otherwise provided in this rule, every Government servant, other than a Class IV servant, shall retire from service on the afternoon of the last

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day of the month in which he attains the age of 58 years:

Provided that, a Government Servant who had attained the age of 58 years prior to issuance of Government Resolution, Finance Department No. PEN.

1099/34/SER-4, dated the 2nd February 1999 and who has been continued thereafter in service shall retire from 28th February 1999 (a.n.)

(2) Subject to the provisions of sub-rule (4), a

Government servant in Class IV service shall retire from service on the afternoon of the last day of the month in which he attains the age of 60years.

(3) The following rules are applicable to particular

services:

(a) Holders of the posts of the Chief Judge of the

Court of Small Causes, Bombay, and the Administrator General and Official Trustee, Bombay, whether they are recruited directly or

are promoted from subordinate posts, should ordinarily be retained in service till the age of 60 years, if they continue to be efficient upto that age, otherwise they may be required to retire at the age of 55 years or any time thereafter.

(b) The Principal Judge, Bombay City Civil and Sessions Court, Bombay, the Chief Metropolitan

Magistrate, Bombay, the Coroner of Bombay and the Additional Coroner of Bombay, should be required to retire on attaining the age of 60 years.

(c) A Judge of the City Civil and Sessions Court (being a Judge appointed direct from Bar) should be required to retire on his completion of the requisite years of qualifying service or duty necessary to entitle him to get the benefit of rule 53 or on his attaining the age of 60 years,

whichever is earlier, provided that such a Judge should not required to retire before he attains the age of 55 years.

(4) Notwithstanding anything contained in sub-rules (1) and (2) of this rule, the appropriate authority, if it is of the opinion that it is in the public interest so to do, by giving [notice of three months] in writing in Form 30 or in Form 31, as the case may be, or three month's

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pay and allowances in lieu of such notice, have the absolute right to retire-

(a) any Gazetted Government servant under the

rule making control of the State Government:-

(i) if he had entered Government service under any Government in India, before attaining the

age of thirty-five years, after he has attained the age of fifty years, and

(ii) in any other case, after he has attained the age of fifty-five years;

[Provided that a Government servant who holds a Class III post in a substantive capacity but is holding a Class I or Class II post in an officiating capacity, shall, in case it is decided to retire him from service while holding a Class I or Class II post, in the public interest,

be allowed on his request in writing to the appropriate authority to continue in service in Class III post which

he holds in a substantive capacity.]

(b) any Government servant who holds a post in class III service of the State, either pensionable

or non-pensionable, after he has attained the age of fifty-five years;

(c) any Government servant who holds a post in class IV service of the State and who is recruited in Government service on or after the 21 st

September, 1970, after he has attained the age of fifty-five years.;

(5) Notwithstanding anything contained in sub-rules (1) and (2) of this rule, any Government servant may, by giving [notice of three months] in writing to the appropriate authority, retire.

(a) in the case of a Government servant-

(i) referred to in sub-rule (4) (a) (i), after he has attained the age of fifty years.

(ii) Referred to in sub-rule (4)(a)(ii) after he has attained the age of fifty-five years;

(b) in the case of a Government servant referred

to in sub-rule (4) (b) and ©, after he has attained the age of fifty-five years:

Provided that where the Government servant giving notice under sub-rule (5) is under suspension or is deemed to be under suspension, it shall be open to the appropriate authority to withhold permission to such Government servant to retire under this rule:

Provided further that where a Government servant giving notice under sub-rule (5) is placed under

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suspension after he has given notice of retirement as above, it shall be open to the appropriate authority to withdraw permission, if already granted or, as the case

may be, to withhold permission to such government servant to retire voluntarily under this rule.

Explanation-

For the purposes of sub-rules (4) and (5) -

(1) "appropriate authority" means the authority which has the power to make substantive appointment to the

post or service from which the Government servant retires, or wants to retire;

(2) the three months notice referred to in these sub- rules may be given either before or after the

Government servant attains the age of fifty or fifty-five years provided that the retirement takes place after he

has attained the age of fifty or fifty-five years, as the case may be;

(3) in computing the notice period of three months referred to in these sub-rules the date of service of notice and the date of its expiry shall be excluded.

Note 1 - A Government servant whose date of birth is

the 1st of a month shall retire from service on the afternoon of the last day of the preceding month on

attaining the age of 58 years or 60 years, as the case may be

Note 2 - For the purposes of sub-clauses (a) and (b) of sub-rule (4) the age of entry into Government service

or recruitment in Government service shall be the age at which a Government servant was appointed to a full time post and not to a part time or honorary post.

(6) (a) A Government servant referred to in sub-rule

(5) may make a request in writing to the appropriated authority to accept notice of voluntary retirement of less than three months giving reasons therefore;

(b) on receipt of a request under clause (a), the appropriate authority may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appropriate authority, with the concurrence of the Finance Department, may relax the

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requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry

of the period of notice of three months.

(7) A Government servant, who has elected to retire

under sub-rule (5) and has given the necessary notice to that effect to the appropriate authority, shall be precluded from withdrawing his notice except with the specific approval of such authority:

Provided that the request for withdrawal shall be made before the intended date of his retirement

20. A perusal of Rule 10 would reveal that the competent

authority is empowered to undertake a review of the performance

or work of a public servant/official including a judicial officer on

her/his attaining 50 years of age. This would enable the

administration to remove those who are inefficient and can safely

be termed as deadwood. Equally, the services of those who, in

public interest, ought not be continued can be done away with. All

this is without casting any stigma. A three Judge Bench of the

Hon'ble Supreme Court of India, in the case of Pyare Mohan Lal

vs. State of Jharkhand and Ors.1 had an occasion to refer to the

relevant principles which must be applied for judicial review of an

order of this nature. From para 8 onwards of this decision, the

Hon'ble Supreme Court of India refers to power of compulsory

retirement and the nature of the order. If the order is based on no

evidence or is arbitrary in the sense that no reasonable person

1 (2010) 10 SCC 693

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would form the necessary opinion on the given material and

perverse, then, this Court can interfere with it. The principles

have been summarised and each of those cases which Mr. Dani

relies upon are referred from paras 8 onwards. In para 18, the

law and the point has been summarised as under:-

"18. Thus, the law on the point can be summarised to the effect that an order of compulsory retirement is not a punishment and it does not imply stigma unless such order is passed to impose a punishment for a proved

misconduct, as prescribed in the statutory rules. (See Surender Kumar v. Union of India (2010) 1 SCC 158).

The Authority must consider and examine the overall effect of the entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the authority may

desire to compulsorily retire an employee in public interest, as in the opinion of the said Authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee "rendered himself a liability to

the institution", there is no occasion for the court to interfere in the exercise of its limited power of judicial

review."

21. Once the power is not exercised to impose a punishment for

a proved misconduct, then by its very nature, the order of

compulsory retirement is not a punishment nor does it imply a

stigma. The Hon'ble Supreme Court thus obliged the authority to

consider the overall effect of the entries of the official concerned

and not an isolated entry, for it may well be in some cases that in

spite of satisfactory performance, the authority may desire to

compulsorily retire an employee in public interest, as in the

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opinion of the said authority, the post should be manned by a

more efficient and dynamic person. If there is sufficient material

on record to show that the employee has rendered himself a

liability to the institution, then he must be retired in the public

interest and a replacement brought in.

22. It is this very principle which has been applied and we do

not see how Mr. Deshpande can seek any assistance of another

legal principle that un-communicated adverse remarks cannot

form the basis for an opinion that the officer concerned is

required to be retired compulsorily.

23. Mr. Dani has also relied upon a subsequent judgment in the

case of Rajendrar Singh Verma vs. Lieutenant Governor (NCT of

Delhi) and Ors.2 This also is a case of compulsory retirement of a

judicial officer. In this judgment, while emphasising the

importance of judicial service to the State, the Hon'ble Supreme

Court holds that judicial service is not a service in the sense of an

employment as is commonly understood. Judges discharge 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 2 (2011) 10 SCC1

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cannot afford to suffer continuance in service of persons of

doubtful integrity or who have lost their utility. The Hon'ble

Supreme Court emphasises this to be a part and parcel of the

mandate of Article 235 of the Constitution of India. Thus, the

power of control vesting in the higher judiciary is coupled with a

duty. The High Court, therefore, must weed out those who are

inefficient and that is why the powers are conferred on it to

prematurely retire and make a recommendation to that effect to

the Sate Government, and by which the State Government is

bound.

24. It is futile to suggest that while assessing the performance

of judicial officer, the High Court does not desire to protect those

whose performance is exemplary or those who are efficient,

honest and devoted to work. A balance is struck inasmuch as the

High Court must equally perform sometimes a unpleasant task of

assessing the performance of the members of the district

judiciary for finding out whether they are fit to be continued

beyond a certain specified age or a certain number of years of

service rendered by them. The very power to review and assess

their performance periodically is exercised to subserve the larger

public interest. Once the High Court acts as a trustee of the public,

then, that enables it to take a decision as in the present case.

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When there is an overall assessment of the record and work of the

judicial officer, then there is hardly any ground to complain. It is

not possible to interfere with an order of compulsory retirement

merely because another view is possible on the basis of the same

material. Powers of judicial review would not enable this Court to

interfere with the opinion recorded on the administrative side.

25. We had, during the course of arguments, impressed upon

the parties that on the administrative side of this Court, the

remarks of the reporting authority are reviewed. These remarks

in the confidential reports are reviewed by a Judge who is

appointed as a Guardian Judge of that district in which the

judicial officer is posted either as a District Judge or otherwise.

The reporting authority, namely, the Principal District Judge

reports about the administrative abilities, punctuality, relations

with the staff, colleagues and members of public litigants and the

manner in which official duties and other work has been

performed. He is not a superior of the Judge concerned.

Therefore, he has no occasion to sometimes remark about his

peer's judicial ability. The judicial ability and quality of the

concerned presiding officer or District Judge is judged by the

Guardian Judge. He has before him the entire service record

including certified true copies of the judgments on the civil and

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criminal side recently delivered by the Judge. Upon perusal and

scrutiny of this entire material, the learned Guardian Judge

remarks about judicial ability of the officer. While reviewing his

overall performance, he comments upon the quality of his

judgments. The quality of judgments is assessed in such a manner

that the learned Guardian Judge remarks about knowledge of law

and procedure, the ability of the judicial officer of appreciation

and marshalling of facts and evidence, application of case law, etc.

If the judgments are clear and if there is no difficulty for the

litigant to understand the reasoning and conclusion, then, there

are several categories of remarks that can be entered. It is not

necessary that the learned Judge must always confine himself or

herself to pre-defined remarks like "Good", "Positively Good",

"Very Good" or "Outstanding". In a given case, a stray entry as

"Fair" or "Satisfactory" against one column would not mean that

the net result is incapable of categorised as, "Average", "Below

Average", "Good", "Very Good", "Positively Good" or

"Outstanding". The ordinary and dictionary meaning of the word

"Fair" in the context of the grading or assessment of one's

performance is moderately good or just a above average. Hence,

we cannot restrict the grading or assessment in the manner

suggested for the meaning is to be gathered by reading the

remarks as a whole. Eventually, "Fair" or "Satisfactory" may not

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necessarily be a positive or negative grading. Everything

depends on the facts and circumstances of each case. The learned

Guardian Judge, therefore, has a wide choice of words, inasmuch

as he may also, while assessing the performance qua the

judgments, term them as "Satisfactory" or "Fair" and remark that

there is a scope for improvement. He may have a word of advice

for the concerned Judge as well. In these circumstances, we

would not be able to agree with Mr. Deshpande that the entries in

these columns have to be necessarily restricted or the choice or

use of words would reveal that the reviewing authority has acted

unfairly or unjustly. We would not be in a position to agree with

him that the remarks ought to have been as "Good" and not

"Poor", "Average" or "Below Average". It is the overall

assessment, therefore, by the Guardian Judge for a particular

time period that is material. However, it must be clarified

immediately that after the exercise is carried out by the learned

Guardian Judge, there is an another committee of three Judges of

this Court which applies its mind and concludes that it is

agreeable or affirms the remarks of the learned Guardian Judge

or that it disagrees with him or her as against the remarks in a

particular column or against a particular head. It may, thus, alter

the net result as well. It can confirm it or modify it. After the

three Judge committee applies its mind, it is not as if the matter

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stands concluded. These remarks are then placed before a

committee of five judges, namely, the administrative committee.

The administrative committee then once again peruses the entire

record, scrutinises and verifies each of the remarks, the entries

for all the relevant years and then arrives at a conclusion. It is

thus the overall assessment of the service is made. If the matter

passes through several hands and at nearly four competent

levels, then it is futile to urge that the power of the full court has

been usurped or taken over by a small committee in this Court.

Even otherwise, in a three Judge Bench decision in the case of

Chandra Singh vs. State of Rajasthan3 the Hon'ble Supreme Court

clarifies the legal position in para 41 at page 2901 in the following

terms:-

"41. 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 blacksheep or weed out the dead wood. This constitutional power of the High Curt cannot be circumscribed by any rule or order. We can usefully

refer to some of the leading cases on Art. 235.

1. State of Assam v. Ranga Mohammed, AIR 1967 SC 903 (5-Judges).

3 AIR 2003 SC 2889

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2. Shamsher v. State of Punjab, AIR 1974 SC 2192 (7-Judges).

3. High Court of Judicature at Bombay v. Shirish

Kumar Rangrao Patil, AIR 1997 SC 2631 (2637)."

26. Thus, after the seven Judge Bench decision in State of Uttar

Pradesh vs. Batuk Deo Pati Tripathi and Anr. 4, the delegation to

smaller committees cannot be termed as unconstitutional and

illegal. (See para 3-II of Nawal Singh vs. State of Uttar Pradesh5)

We do not see how any complaint of this nature can be made in

the given facts and circumstances. The annexures to the petition

would reveal as to how the remarks and for those years, as have

been referred, were placed before the learned Guardian Judge

and thereafter the administrative committee applied its

independent mind to the same. It is not a rubber stamp

endorsement made routinely of these remarks. It is not as if some

casual exercise is undertaken and completed. It is not a

mechanical or formal exercise. Once the remarks were placed and

in this case before the five Judges committee and the committee

found that the annual confidential reports from 2000 to 2010

shows the performance of the petitioner as falling short of the

required standards, that there is a marked deterioration in the

4 (1978) 2 SCC 102 5 AIR 2003 SC 4303

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same, then, it was rightly concluded that her continuation in

service would not be useful to the institution. 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 [see para 48 of Chandra Singh (supra)].

27. The remarks against the column "Integrity" have also been

perused carefully. It is, therefore, clear that there was material

before the appropriate committees, which took into consideration

the remarks and concluded that the performance needs to be

weighed for integrity and character. The vigilance record and

maintained by an independent department of this Court on

administrative side was also perused for the number and nature

of complaints. Thus, the record has been considered in totality. If

this consideration reveals that the judicial officer does not

deserve to be continued in judicial service and it is fit to retire her

prematurely from service in public interest, then acceptance of

that decision by the State does not mean that the order passed

and impugned in the petition can be termed as based on no

material at all. It cannot be termed as arbitrary and perverse

either. Once there was definite material and some of which has

been referred by the petitioner herself, then it is not possible to

agree with Mr. Deshpande that the powers of judicial review

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should be exercised to interfere with the impugned order. The

parameters of judicial review are well settled. As held by the

Hon'ble Supreme Court in the case of Nawal Singh (supra) at page

4311 that it is impossible to prove by positive evidence the basis

for doubting the integrity of the judicial officer. In the present

day system, reliance is required to be placed on the opinion of the

higher officer who had the opportunity to watch the performance

of the concerned judicial officer from close quarters and

formation of his opinion with regard to overall reputation enjoyed

by the concerned officer would be the basis. (see para 8 at page

4311). Thus, we are not appellate authorities to reassess or re-

appreciate all the materials.

28. As far as the judgments which have been relied upon by Mr.

Deshpande, in the case of Madan Mohan Choudhary vs. State of

Bihar6 the Hon'ble Supreme Court found that the order of

compulsory retirement passed by the State Government had to be

quashed because the adverse remarks for the years 1991-92,

1992-93 and 1993-94 were not recorded in the normal course

and that too when the standing committee of the High Court had

already formed an opinion to compulsorily retire the appellant

from service. The representation made against these remarks

6 AIR 1999 SC 1018

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was not dealt with promptly but was disposed of by the High

Court after a long period of one year. These remarks which were

recorded in the character roll of the appellant at one go and were

communicated to the appellant on 29th November, 1996, were

considered by the Full Court on 30th November, 1996 and the Full

Court then approved a proposal to compulsorily retire the

appellant from service. This was the background in which the

High Court order was interfered with by the Hon'ble Supreme

Court. It found that the materials before the High Court were not

of such nature as would enable it to reach and form the opinion

that the appellant had outlived his utility as a judicial officer.

Thus, in the given facts and circumstances the Hon'ble Supreme

Court referred to the principles in the earlier cases and quashed

and set aside the order of compulsory retirement.

29. In the case of High Court of Judicature at Patna vs. Shyam

Deo Singh and Ors.7 the Hon'ble Supreme Court found that the

adverse remarks dated 15th December, 1995 had not been

communicated to the respondent. The record further revealed

that the standing committee of the High Court in its meeting had

decided to close the matter instead of proceeding any further. The

subsequent annual confidential reports of the respondent for the

7 2014(4) SCC 773

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year 1997-98 and 2000-01 were sufficiently positive and

depicted the respondent as an efficient judicial officer with a good

reputation for honesty and impartiality. The respondent gained

two promotions and thus, it was evident that the adverse

remarks dated 15th December, 1995 were not acted upon. It was

in these circumstances and on account of the exemplary service

record so also the overall improved performance that the Hon'ble

Supreme Court in a three Judge Bench decision dismissed the

appeal of the High Court. The order of compulsory retirement

which was set aside by the High Court was thus set aside by the

Hon'ble Supreme Court, meaning thereby, the High Court's

conclusion was upheld.

30. We would be failing in our duty if we do not remind all

concerned about the importance of writing and communicating

the remarks in the annual confidential reports. In the case of

Registrar General, High Court of Patna vs. Pandey Gajendra

Prasad and Ors.8, the Hon'ble Supreme Court, in the above

context, held thus:-

"12. Article 235 of the Constitution of India not only vests total and absolute control over the subordinate courts in the High Courts but also enjoins a constitutional duty upon them to keep a constant 8 (2012) 6 SCC 357

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vigil on the day-to-day functioning of these courts. There is no gainsaying that while it is imperative for

the High Court to protect honest and upright judicial officers against motivated and concocted allegations,

it is equally necessary for the High Court not to ignore or condone any dishonest deed on the part of any judicial officer. It needs little emphasis that the

subordinate judiciary is the kingpin in the hierarchical system of administration of justice. It is the trial Judge, who comes in contact with the litigant during the day-to-day proceedings in the

court and, therefore, a heavy responsibility lies on

him to build a solemn unpolluted atmosphere in the dispensation of justice which is an essential and

inevitable feature in a civilised democratic society.

13. In High Court of Judicature of Bombay v. Shashikant S. Patil (2003) 1 SCC 416: 2000 SCC

(L&S) 114 highlighting a marked and significant

difference between a judicial service and other services, speaking for a Bench of three Judges, K. T.

Thomas, J. observed as follows: (SCC p. 425, para 23)

"23. The Judges, at whatever level they may be, represent the State and its authority, unlike the bureaucracy or the

members of the other service. Judicial service is not merely an employment nor the Judges merely employees. They exercise sovereign judicial power. They are holders of public officers of great trust and responsibility. If a judicial officer 'tips the scales of justice its rippling effect would be

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disastrous and deleterious'. A dishonest judicial personage is an oxymoron."

14. In short, it is the constitional mandate tht

every High Court must ensure that the subordinate judiciary functions within its domain and administers justice according to law, uninfluenced by any

extraneous considerations. The members of the subordinate judiciary are not only under the control but also under the care and custody of the High

Court. Undoubtedly, all the judges of the High Court, collectively ig and individually, share that responsibility.

.....

23. ..... As regards the observation of the Division

Bench on the reputation of the first respondent based on his ACRs, it would suffice to note that apart from

the fact that an ACR does not necessarily project the overall profile of a judicial officer, the entire personal file of the respondent was before the Full Court when

a conscious unanimous decision was taken to award the punishment of his dismissal from service. It is also well settled that in cases of such assessment,

evaluation and formulation of opinion, a vast range of multiple factors play a vital and important role and no single factor should be allowed to be blown out of proportion either to decry or deify issued to be resolved or claims sought to be considered or asserted. In the very nature of such things, it would be difficult, rather almost impossible to subject such

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an exercise undertaken by the Full Court, to judicial review, save and except in an extraordinary case

when the Court is convinced that some exceptional thing which ought not to have taken place has really

happened and not merely because there could be another possible view or there is some grievance with the exercise undertaken by the Committee/Full

Court. (See Syed T. A. Naqshbandi v. State of J&K (2003) 9 SCC 592:2003 SCC (L&S) 1151.

.....

However, before parting with the judgment, we deem it necessary to make a mention about the

recording of the ACRs of judicial officers. We feel that the present system of recording the ACRs leaves much to be desired and needs to be revamped.

Experience has shown that it is deficient in several ways, being not comprehensive enough to truly

reflect the level of work, conduct and performance of each individual on the one handed and unable to check subjectively on the other. This undoubtedly

breeds discontent in a section of the judicial service besides eroding proper and effective superintendence and control of the High Court over subordinate judiciary.

26. The process of evaluation of a judicial officer is intended to contain a balanced information about his performance during the entire evaluation period, but it has been noticed that many a times, the ACRs are recorded casually in a hurry after a long lapse of

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time (in some cases even after the expiry of one year from the period to which it relates), indicating only

the grading in the final column. It needs no elaboration that such hurried assessment cannot but,

be either on the basis of the assessment/grading of the preceding year(s) or on personal subjective views of the Inspecting Judges(s), which is unfair to the

judicial officer.

27. Undoubtedly, ACRs play a vital and

significant role in the assessment, evaluation and formulation of opinion on the profile of a judicial

officer, particularly, in matters relating to disciplinary action against a judicial officer. The

ACRs of such officer hold supreme importance in ascertaining his conduct, and therefore, the same have to be reported carefully with due diligence and caution. We feel that there is an urgent need for

reforms on this subject, not only to bring about

uniformity but also to infuse objectivity and standardisation."

31. In a subsequent judgment in the case of Sukhdev Singh vs.

Union of India and Ors.9 the three Judge Bench of the Hon'ble

Supreme Court, resolving the controversy, held as under:-

"In our opinion, the view taken in Dev Dutt v. Union of India (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771. that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is

9 (2013) 9 SCC 566

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legally sound and helps in achieving threefold objectives. First, the communication of every entry in

the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving

his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to

make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the

remarks relating to a public servant and the system becomes more conforming to the principles of natural

justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be

communicated to him/her within a reasonable period."

32. We do not think that any larger question and controversy

should be decided, simply because the emphasis in

Mr.Deshpande's arguments is that un-communicated adverse

remarks cannot form the basis of the opinion to compulsorily

retire the petitioner. In the facts before us, it was not the

complaint of the petitioner that remarks are un-communicated.

Had they been un-communicated, the petitioner could have

complained straightaway. It is her complaint that in August,

2011 her annual confidential reports for prior period were

written and those were taken into consideration by the committee

of this court on administrative side to form the requisite opinion.

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The complaint is that the committee did not take into

consideration the positive reports but relied upon the adverse

remarks and stated to be recorded at one go by this Court. That is

not the factual position. The annual confidential reports of 10

years have been considered. Some intermittent positive entries

do not mean that on all fronts and consistently the petitioner's

performance was of the required standard and to be categorised

as "Good". There was something lacking in the sense the disposal

was not adequate, the integrity and character was remarked

upon as not of required standard. Her performance was required

to be weighed on these counts as well. Therefore, the averments

in the petition would not enable us to reach the conclusion that

the impugned order is vitiated.

33. We have taken into consideration all the materials that

were relied upon to retire the petitioner compulsorily from

service and which have been placed before us. Our conclusion

that the petition is required to be dismissed is thus not on some

remarks and which in the complaint of the petitioner were not

communicated.

34. In passing, we would also invite the attention of all

concerned to the pleadings in this petition. Although the

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argument is premised on legal malafides, what we find repeatedly

as an averment in the petition and particularly in paras 21 and

26 is that the learned Guardian Judge, who recorded the net

result as "Average"/"Below Average", is accused of bias and

prejudice against the petitioner. The averment is hopelessly

vague. The particulars of the tenure of the learned Guardian

Judge and the petitioner's postings at the relevant station are

conspicuously missing from the pleadings. It is well settled that

allegations of malafides are easily made, but are difficult to prove.

They should not be taken into consideration unless cogent and

satisfactory materials are placed to establish and prove the

allegations. In such circumstances, when the projection is of

personal malafides, but the argument is directed against legal

malafides, then all the more we are disinclined to interfere at the

instance of the petitioner in our equitable and discretionary

jurisdiction under Article 226 of the Constitution of India. The

above situation can be avoided by timely writing, reporting and

reviewing of the annual confidential reports.

35. As a result of the above discussion, the Writ Petition is

dismissed. There would be no order as to costs.

(G.S.PATEL, J.) (S.C.DHARMADHIKARI, J.)

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