High Court Of Delhi vs Sh. Purshottam Das Gupta & Ors.
2001 Latest Caselaw 198 Del

ORDER

A.K. Sikri, J.

1. Respondent No.1, Sh.Purshottam Das Gupta, is a member of Delhi Judicial Service (for short "DJS"). He joined DJS on 28th January, 1978. He is aspiring to get promotion to the Delhi Higher Judicial Service(for short "DHJS). His case for promotion to the DHJS was considered by a Full Court of this Court on administrative side but rejected. While considering his case for promotion to DHJS, adverse remarks made by the High Court for the years 1994 and 1995 came in his way. Feeling aggrieved, respondent No.1 filed CWP No.4334 of 1997 in this Court, inter alia, seeking quashing of the adverse remarks in his Confidential Reports for the years 1994 and 1995 and direction to promote him to DHJS with retrospective effect and appropriate seniority and other benefits or in the alternative direction to consider his case for promotion to DHJS with retrospective seniority and all other benefits. His writ petition has been allowed by the learned Single Judge vide judgment and order dated 28th May, 1999. By this judgment the learned Single Judge has quashed the ACRs of the respondent No.1 herein as recorded by the High Court for the years 1994 and 1995. It is also declared that respondent No.1 herein is to be graded B+ for the years 1994 and 1995. The learned Single Judge has further held that respondent is declared to have been promoted to DHJS as on 18th May, 1996 and shall be entitled to his due seniority and all consequential benefits. It is this judgment and order dated 28th May, 1999 which is impugned in the present Letters Patent Appeal.

2. The learned Single Judge in his judgment has narrated detail facts on the basis of which the respondent No.1's case had been dealt with by the High Court and impugned orders were passed. It is, therefore, not necessary to repeat all these facts once again and the purpose would be served in highlighting the material facts.

3. Respondent No.1 joined DJS on 28th January, 1978. He was granted selection grade in the said service in June 1993 w.e.f. 31st May, 1991. On 18th May, 1996 meeting of Full Court was held and one of the items of agenda was consideration of eligible judicial officers in DJS for promotion to DHJS. This consideration was not possible without there being record of ACRs of all the eligible officers. Accordingly ACRs of 23 officers were recorded by the Full Court and thereafter Full Court considered the cases of these officers for promotion to DHJS. As far as respondent No.1 is concerned, he was given adverse remarks 'C-Intergrity Doubtful' for the years 1994 and 1995 in that meeting. He was also not found fit for promotion to DHJS and was superseded.

4. On 27th May, 1996 a communication was served from the High Court to respondent No.1 informing him about the adverse remarks and he was asked to make representation, if any, within six weeks communication of such remarks. Respondent No.1 submitted his representation on 8th July, 1996 to District Judge which was forwarded by the District Judge to the High Court on 10th July, 1996 with his endorsement for favorable necessary action, remarking that no complaint has been received/pending in his office. This representation was followed by another representation submitted on 21st February, 1997 in which it was also stated that his case for promotion for DHJS may be considered with retrospective effect. Yet another representation dated 16th September, 1997 was made to the District Judge for a personal hearing in the matter by the Full Court which was forwarded by the District Judge to the High Court. Representations of respondent No.1 as well as of some other officers came up for discussion in Full Court Meetings from time to time. On 18th January, 1997 the Full Court constituted a Committee of four Judges to enquire into these representations. The Committee gave its report on 22nd July, 1997. Report shows that representations of as many as 19 judicial officers were considered in the meetings of the Committee held on various dates. The Committee had perused personal files, complaint files, ACRs files and also judgment of some of the officers. The Committee also made some enquiries (as there is some dispute about the nature of enquiry, this aspect would be dealt with by us at the appropriate stage). After fully considering and examining the matter, the Committee gave its recommendations on each of the representation submitted by these officers. Some of the representations were rejected while some were accepted by the Committee. In so far as representations of the respondent No.1 are concerned, the recommendation of the Committee was to reject his representations.

5. The recommendations of the Committee were accepted by Full court, after due deliberations in the meeting held on 20th September, 1997. The decision of the Full Court rejecting the representations of the respondent No.1 herein was conveyed to the District & Sessions Judge by letter dated 25th September, 1997 and he was asked to inform respondent No.1 of the said rejection. Respondent No.1 challenged the decision by filing CWP No.4334/97 on 15th October, 1997. As mentioned already, this writ petition of respondent No.1 herein has been allowed by the judgment dated 28th May, 1999 and present appeal is preferred impugning this judgment.

6. The reliefs given by the learned Single Judge can be compartmentalized under three heads:

1. Expunging of the adverse remarks of respondent No.1 for the years 1994 and 1995.

2. Declaring that respondent No.1 is deemed to have been graded as B+ for the years 1994 and 1995.

3. Declaring that respondent No.1 stands promoted to DHJS w.e.f. 18th May, 1996 and entitled to his due seniority with all other consequential benefits.

7. For the sake of convenience and better comprehension, it would be appropriate to deal with each of these aspects separately.

Point No.1 RE: Adverse remarks for the years 1994 and 1995.

8. A perusal of the impugned judgment would point out that what weighed with the learned Single Judge was that the respondent No.1, keeping in view his service record and performance, was assigned the duties of Additional Rent Controller and was invested with powers of the Appellate Court when his juniors were not given those powers; he was also given powers of Drawing and Disbursing Officer in the years 1994 and 1995 and all these factors would show that High Court had reposed faith in him. Further the respondent No.1 had earned B+ grading in all of his Confidential Reports till 1993. For the years 1994 and 1995, he was given the grading of 'C-Doubtful Integrity' and there was no material to come to the conclusion that the integrity of the respondent No.1 was doubtful and the adverse remarks were made on the basis of inference. The grading for two years was recorded much belatedly on one single day by the Full Court in its meeting on 18th May, 1996. While recording this grading, even the procedure which is adopted by the High Court and stated in its counter affidavit was not followed. Various Supreme court judgments are cited in the impugned judgment in support of the conclusion that there should be some 'material' on record forming basis for the opinion that the concerned judicial officer is of 'doubtful integrity'.

9. Assailing the aforesaid reasoning and conclusion of the learned Single Judge arrived at in the impugned judgment, Mr. Sanjay K.Kaul, learned senior counsel appearing for the appellant argued that the peculiarity in the system of recording ACRs of the judicial officers of subordinate judiciary by the High Court with the collective wisdom of the Full Court has to be appreciated and respected. Although there is one Inspecting/Supervising Judge for a particular judicial officer who gives his report in the prescribed form, the report is then discussed in the Full Court and Full Court after discussion on that report and after deliberating on various aspects records the ACR of judicial officer. In this process, the report as given by the Supervising Judge and his recommendation about the grading may be accepted or the Full Court may grade him differently and award grading other than recommended by the Supervising Judge. Collective wisdom of Full Court is to be distinguished from that of Supervising Judge. There are number of circumstances where different grading other than that recommended by Supervising Judge is given whereby the judicial officer is either given low grading or superior grading than the one recommended by the Supervising Judge. This shows the discussions and deliberations are meaningful and are not an empty formality. Elaborating this argument further, it was submitted that in so far as the question of doubtful integrity of a judicial officer is concerned, it would be rare when the definite material in the form of written complaints etc. would be available. Normally litigants or lawyers would feel reluctant to come forward and make complaints against a judicial officer in writing. On the other hand, it is an important aspect which hardly needs emphasis that purity in the judicial system has to be maintained. Therefore, some mechanism has to be found whereby integrity of the judicial officers is judged. According to him, the sources for information could be complaints (verbal as well as in writing), testing of the judgments of the judicial officer and general impression of the bar and the judges or cross section of public about the integrity of a judicial officer formed on the basis certain instances coming to their notice. This would constitute 'material' which may be drawn from one more sources stated above and ultimately it is the collective wisdom of the Full Court, based on the aforesaid 'material' which should prevail. His further submission was that system of checks and balances was inherent in the procedure inasmuch as it was the collective wisdom of 25-30 judges which went into recording the ultimate grading of a judicial officer and such grading should not be lightly interfered with. The case of a judicial officer should not be treated at par with that of any other civil servant. For this purpose, learned senior counsel also drew our attention to the procedure of recording ACRs that was followed by the High Court which was mentioned in the counter affidavit in the following words:

"(a) Annual Confidential reports of all the Judicial Officers are recorded by the Full Court of the High Court on a calendar year basis, at the end of the Calendar year;

(b) Groups of the Judicial Officers of subordinate Courts are placed under the direct supervision and control of individual Hon'ble Judges of the High Court for the purpose of inspections;

(c) The Hon'ble Inspecting Judges call for and assess the monthly disposal of Judicial Officers and also carry out inspection of the Courts of Officers allotted to them. They may also call for judgments from the particular Officers for perusal. Complaints, if any, received against the Judicial Officers are also placed before the Hon'ble Inspecting Judges and the Hon'ble Judges, after perusal of the complaints, depending upon the nature and merits of the allegation, some times, call for judicial files of the cases to which the complaints are related and pass appropriate orders on the administrative side;

(d) The Hon'ble Inspecting Judges, thereafter, give their Inspection Reports/Confidential remarks on the working of the Officers concerned, on the proforma prescribed containing columns as mentioned therein; and

(e) At the time of recording of ACRs by the Full Court, the reports of the District and Sessions Judge, if any given, the Inspection report of the Hon'ble Inspecting Judge, if made, summary of monthly disposal of the Officer and a precis of previous 5 years ACRs are placed before the Full Court for its consideration for the recordings of the ACRs of the Judicial Officers. The personal files and complaint files, if called for, are also placed before the Full Court.

10. Referring to the facts of the present case, it was argued that after ACRs of the respondent No.1 were recorded and communicated to him, he was given an opportunity to make representation against the same Respondent No.1 in fact made representation for expunging the remarks which was considered by the Full Court and Full Court constituted a Committee to look into the matter in the light of representation of the respondent No.1. The Committee of four Judges which was constituted for this purpose again went into this exercise and submitted its report dated 22nd July, 1997. This report clearly shows that Committee had perused the personal files, complaint files, ACR filed and also judgments of some of the officers. It also made certain enquiries. On that basis it was recommended that representations of respondent No.1 be rejected. Referring to the report, it was further contended that cases of as many as 19 judicial officers; including that of respondent No.1, were considered and report would show that in some cases, the representations were accepted and grading changed while in other cases these were rejected. This amply demonstrates appropriate and due application of mind by four member Committee. Moreover, this report of the Committee was again discussed by the Full Court in its meeting on 20th September, 1997 and after deliberating thereon Full Court also accepted this report. Thus it cannot be treated as a case where the grading of respondent No.1 was recorded without application of mind or without any material. It was again stressed that the aforesaid procedure showed that the matter was discussed on number of occasions ensuring checks and balances. Such a decision of the Full Court on administrative side should not have been lightly interfered with by a Single Judge sitting on judicial side and there was very limited scope of Court's power of judicial review. Mr Kaul concluded by submitting that the learned Single Judge was not right in expunging the remarks and wrongly held that there was no material to justify these remarks and he did not examine the case in proper perspective ignoring the aforesaid salient aspects.

11. Mr. U.N.Bachawat, learned senior counsel appearing for respondent No.1 on the other hand, supported the reasoning given by the learned Single Judge in the impugned judgment. He pointed out that on 6th January, 1996 Full Court had conferred upon the respondent No.1 appellate powers against the decrees or orders passed by any Civil Judge - of course fixing the pecuniary limit of the subject matter. Apart from the general presumption about the integrity of the respondent in conferring these powers ignoring five other judicial officers, it virtually amounted to promotion. Moreover when there was nothing adverse on 6th January, 1996, unless pleaded and proved that some material relating to the years 1994 and 1995 which was not on record on 6th January, 1996 was placed on record on 18th May, 1996, it has to be presumed that there was no material to take a view adverse to the respondent No.1. In the instant case neither there is a pleading nor any material-that a material which was not on record on 6th January, 1996

12. The learned senior counsel also relied upon various judgments in support of his submission that without there being any material on record, no adverse remarks could be justified. He particularly referred to the following judgments:-

1. Ishwar Chand Jain Vs. High Court of Punjab and Haryana and Anr. .

2. High Court of Punjab and Haryana through R.G. Vs. Ishwar Chand Jain and Anr. .

3. Madan Mohan Choudhary Vs. The State of Bihar and Ors. .

4. U.P.Jal Nigam Vs. S.C.Atri and Anr. .

5. H.C.Puttaswamy & Ors. Vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and Ors. .

6. State of Mahrashtra & Ors. Vs. Pratap Singh Dayal Rajput .

7. R.C.Sood Vs. High Court of Judicature at Rajasthan and Ors. .

8. M.S.Bindra Vs. Union of India and Ors. .

9. High Court of Judicature at Allahabad through Registrar Vs. Sarnam Singh & Anr. reported as 1999 X AD (SC) 289.

10. U.P.Jal Nigam and Ors. Vs. Prabhat Chandra Jain and Ors. .

11. Sukhdeo Vs. The Commissioner Amravati Division, Amravati & Anr. .

12. Padam Singh Vs. Union of India & Ors. reported as 2000 III AD (Delhi) 430.

13. The learned senior counsel further submitted that this Court has considered the question of 'collective wisdom' in Padam Singh Vs. UOI and others (2000 III AD (Delhi) 430 and held as under:

"Needless to add that in petitioner's case ACRs for 1990 and 1991 also formed part of the material, which was considered by the Committee and the Full Court. In Baikuntha Nath Das's (supra) it was observed that it may not be possible that in all cases evidence would be forthcoming about the doubtful integrity of a Judicial officer and at time the Full Court has to act on the collective wisdom of all the judges. But without even a complaint from any quarter or any instance or circumstance as to the conduct, which led the Full Court to say about integrity, it has to be held that the ACRs were flawed, which alone could not have formed the basis to brand the petitioner of doubtful integrity and to grade him 'C'. Before the two reports, which were recorded on the same day the petitioner had a good record as regards integrity. There is no answer to the question that in the absence of any complaint from any quarter how the petitioner was doubted to be an officer having doubtful integrity. It will be a case of absolute lack of material, which is almost equivalent to a situation that from the available material no reasonable man would reach to such a conclusion...."

14. Reliance was also placed on the following observations of the Supreme Court in the case of High Court of Judicature at Allahabad through Registrar Vs. Sarnam Singh & Anr. (1999 X AD (SC) 289:

"The original service record of the respondent was placed before us which reveals that respondent, at no time, was given any adverse remarks during the entire tenure of his service. The High Court had itself, while disposing of the writ petition, scrutinised the service record of the respondent and observed as under:-

"It appears that petitioner joined, as already stated, U.P.Higher Judicial Service on 23/4/1984. He was posted as Additional District Judge Moradabad from June, 1992 under Sri Tej Shankar, the then District Judge, Moradabad, who was later on elevated to the Bench. He was also posted under Sri Bhagwandin, then then Distt. Judge Moradabad who also was elevated to the Bench later on. It may be stated that the petitioner was posted with (three) Distt. Judges who were later on elevated to the Bench namely, Sri N.S.Gupta, Sri. Bhagwandin and Sri Tej Shankar, and according to petitioner there was no complaint to all those 3 (three) the then District Judges against his works and conduct."

"The High Court, thereafter, proceeded to consider various aspects of the matter, including the fact that at the time when Mr. Justice R.B. Mehrotra made a surprise inspection of the Moradabad Judgeship, the lawyers were on strike, and ultimately recorded a finding that the impugned adverse entry was unjustified, arbitrary and based on non-existent facts and was, therefore, liable to quashed. We uphold the findings of the High Court."

15. The learned senior counsel also highlighted the fact that for the years up to 1993 the respondent had 'B+' grading. For the year 1994 the Inspecting Judge graded the respondent as 'B+', and the Inspecting Judge for the year 1995 did not make any variation or modification in the grade 'B+'. The Judge has said "I have not inspected his Court but I have heard complaints about his integrity, I am leaving column Nos. 6 and 7 for being filled up by the Full Court". This tacitly means that the complaints had no credibility in his opinion also. There is nothing on record as to what was the nature of the complaints and who were the complainants. This note therefore does not warrant any adverse inference against the respondent No.1, particularly when the Inspecting Judge in the column at Sr. No.5 of his inspection report gave a positive remark that the respondent No.1 is an efficient judicial officer. Commenting upon the report of Four-member Committee, it was submitted that the report should be rejected inasmuch as the Committee was required to submit its report to the Full Court and not merely one word recommendation 'allowed or rejected'. In other words the intendment was that on examining the reasoned report of the sub-committee the Full Court was to come to its own conclusion. It is undisputed that neither any such report nor any material on which its recommendation was based was placed before the learned Single Judge or before this Bench. It was also argued that the perusal of the report showed that it did not specifically state that personal files, complaint files, ACR files and judgments of the respondent No.1 were perused by the Committee. Much was commented about 'discrete enquiries' by highlighting that dictionary meaning of the word discrete was 'not concrete', and therefore, as per Committee's report itself no concrete enquiries were made. It was also submitted that granting of 'C grading' i.e. integrity doubtful was a serious matter inasmuch for a judicial officer, the integrity is the bed-rock of his reputation. If his integrity is questioned, his reputation is lost. In other words it is deprivation of his fundamental right to reputation under Article 21 of the Constitution of India. Therefore, there must be cogent reasons for depriving the respondent No.1 of his reputation. It also affects the independence of the judiciary, the maintenance of which is the obligation of the High Court. For this reliance was placed upon following observation in the case of H.C.Puttaswamy(supra):

".......There is imperative need for total and absolute administrative independence of the High Court. But the Chief Justice or any other Administrative Judge is not an absolute ruler. Nor he is a free wheeler. He must operate in the clean world of law, not in the neighborhood of sordid atmosphere. He has duty to ensure that in carrying out the administrative functions, he is actuated by same principles and values as those of the Court he is serving. He cannot depart from and indeed must remain committed to the constitutional ethos and traditions of his calling. We need hardly say that those who are expected to oversee the conduct of others must necessarily maintain a higher standard of ethical and intellectual rectitude. The public expectations do not seem to be less exacting."

16. We have vividly pondered over the matter giving profound consideration to the submissions made on the either side. The matter of writing Annual Confidential Reports of a judicial officer assumes much importance when examined keeping in view that judicial officer is part of a system which is to carry out important sovereign function namely dispensing of justice. It hardly needs to be emphasised that judiciary plays an important role in protecting the rights of the individuals. It is revered and respected by common man as he feels that his grievance would be heard and decided impartially by the Judge. The judiciary is to ensure that everybody, howsoever high or low he may otherwise be, is equal in the eyes of law. In this context following observations made by the Supreme Court way back in the year 1982 in the case of Randhir Singh Vs. UOI & Ors. are worth noticing:

"Now, thanks to the rising social and political consciousness and the expectations roused as a consequence and the forward looking posture of this Court, the underprivileged also are clamouring for their rights and are seeking the intervention of the court with touching faith and confidence in the Court. The Judges of the Court have a duty to redeem their constitutional oath and do justice no less to the pavement dweller than to the quest of the Five Star Hotel."

17. Similarly in Supreme Court Advocates-on-Record Association & Ors. Vs. UOI (para 59), the Apex Court expressed the following sentiments:

"The concept of independence of judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the Judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective.... But it is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices."

18. It is a matter of common knowledge that the judiciary has rendered many landmark decisions on matters of public interest, like those relating to environmental issues, greater transparency and accountability of administration which have made an enduring impact on the society. From corruption to crime, corporate disputes to human rights and activating the law enforcing agencies to disciplining the general public, the Courts have played a pivotal role in all fields for achieving the goal of social cleansing. The courts are now seen as the last resort for the oppressed and the bewildered. In the judicial hierarchy, subordinate judiciary plays much important role which has the task to do justice at the grassroot level. In this backdrop, high credentials of the Judge assume great significance. In order to sustain the faith of public in judicial system, it is of utmost importance that the judicial officer is of impeccable integrity and is not susceptible to any pressures or amenable to any lurements-material or otherwise.

19. While on the one hand, this essential requisite for proper functioning of judicial system is to be ensured, on the other hand one is not to lose sight of the fact that the judicial system or individual judicial officer may be prone to uncalled for, malicious and motivated criticism and allegations by unsocial and mischievous elements in the society which may include disgruntled and dissatisfied litigants and their counsel. By the very nature of its functioning when two litigating parties having disputes come before the Court, one party is bound to lose the case and there may be instances when the losing party takes up cudgels against the concerned judicial officer. Instances are not lacking when such persons indulge in mudslinging and send anonymous or pseudonymous complaints full of concocted, false and malicious allegations. While on one hand purity in the judicial system is to be maintained, on the other hand one has to sniff out all such mudslinging and false complaints to enable the judicial officer to discharge his duties without any fear or favor. No doubt it is a delicate and difficult task to achieve. A judicial officer cannot be dubbed as officer 'lacking in integrity' lightly. At the same time, for ensuring purity in the stream of justice, care has to be taken that those judicial officers who lack integrity and are indulging in dubious activities are dealt with appropriately lest impression is given that nobody would be able to harm them and they may continue to indulge in such nebulous activities undeterred, thereby affecting the very edifice of judicial system and shaking the faith of public in judiciary by such maligned activities. Musing over these considerations and keeping in view the aforesaid principles in mind that one has to examine in a particular case as to whether the concerned judicial officer is rightly branded as a person of 'doubtful integrity'.

20. Aforesaid discussion would amply clarify one aspect. Merely on the basis of surmises and conjectures and without there being any supportive material, a judicial officer cannot be described as person of 'doubtful integrity'. In fact the law on this point is well settled, and understandably so, by a series of judgments of the Apex Court as well as various High Courts and also those cited by learned counsel for the respondent No.1 some of which are quoted in the impugned judgment by the learned Single Judge as well. It is not necessary to extract here the relevant portions of these judgments which task has been undertaken by the learned Single Judge. However, we are prompted to refer to a recent judgment of the Apex Court in the case of Bishwanath Prasad Singh & Ors. Vs. State of Bihar & Ors. reported as JT 2001 (1) SC 161 wherein the law on this subject is expressed in erudite manner, taking stock of the earlier judgments relevant to the context. The observations of the Apex Court are found in the following words of wisdom:

"Para 31: Article 235 of the Constitution vests administrative and disciplinary control over the district judiciary including the subordinate judiciary in the High Court immunising them from the executive control of the State Government so as to protect judicial independence. Control over subordinate courts vested in the High Court is a trust and confidence reposed by the founding fathers of the Constitution in a high institution like the High Court. The trust has to be discharged with a great sense of responsibility. All the High Courts have framed rules dealing with executive and administrative business of the Court. There are administrative committees and inspecting Judges in the High Court. Periodical inspections of subordinate courts have to be carried out regularly so as to keep a vigil and watch on the functioning of the subordinate judiciary, the importance and significance whereof needs no emphasis. In High Court of Punjab & Haryana Vs. Ishwar Chand Jain this court observed:

"The object of such inspection is for the purpose of assessment of the work performed by the Subordinate Judge, his capability, integrity and competency. Since Judges are human beings and also prone to all the human failings, inspection provides an opportunity for pointing out mistakes so that they are avoided in future and deficiencies, if any, in the working of the subordinate court, remedied. Inspection should act as a catalyst in inspiring Subordinate Judges to give best results. They should feel a sense of achievement. They need encouragement. They work under great stress and man the courts while working under great discomfort and hardships. A satisfactory judicial system depends largely on the satisfactory functioning of courts at grass roots level. Remarks recorded by the inspecting Judge are normally endorsed by the Full Court and become part of the annual confidential reports and are foundations on which the career or a judicial officer is made or marred. Inspection of subordinate courts is thus of vital importance. It has to be both effective and productive. It can be so only if it is well regulated and is workman-like. Inspection of subordinate courts is not a one-day or an hour or a few minutes' affair. It has to go on all the year round by monitoring the work of the court by the Inspecting Judge. The casual inspection can hardly be beneficial to a judicial system. It does more harm than good."

Para 32: The above said observations were reiterated by this court in High Court of Judicature at Allahabad Through Registrar Vs. Sarnam Singh Ors. with a note that they indicated the attitude and objectivity to be adopted by the inspecting Judges while objectively expected considering the work and conduct of the judicial officers who have to work under difficult and trying circumstances. Observation in R.Rajiah's case were also notice cautioning against acting on ill-conceived or motivated complaints and rumour-mongering which may seriously jeopardise the efficient working of the Subordinate Courts.

Para 33: A number of decisions dealing with the object and purpose of writing confidential reports and care and caution to be adopted while making entries in the confidential records of Government Officers have been referred to in the cases of Sarnam Singh(supra, vide para 31, 32) as also in the case of Ishwar Chand Jain (supra). We need not repeat the same. Suffice is to observe that the well-organized and accepted practice of making annual entries in the confidential records of subordinate official by superiors has a public policy and purposive requirement. It is one of the recognised and time-tested modes of exercising administrative and disciplinary control by a superior authority over its subordinates. The very power to make such entries as have potential for shaping the future career of a subordinate officer casts an obligation on the High Courts to keep a watch and vigil over the performance of the members of subordinate judiciary. An assessment of quality and quantity of performance and progress of the judicial officers should be an ongoing process continued round the year and then to make a record in an objective manner of the impressions formulated by such assessment. An annual entry is not an instrument to be wielded like a teacher's cane or to be cracked like a whip. The High court has to act and guide the subordinate officers like a guardian or elder in the judicial family. The entry in the confidential rolls should not be a reflection of personal whims, fancies or prejudices, likes or dislikes of a superior. The entry must reflect the result of an objective assessment coupled with and effort at guiding the judicial officers to secure an improvement in his performance where need be; and expressing and appreciation with an idea of toning up and maintaining the immitable qualities by affectionately patting on the back of meritorious and deserving. An entry consisting of a few words, or a sentence or two, is supposed to reflect the sum total of the impressions formulated by the inspecting Judge who had the opportunity of forming those impressions in his mind by having an opportunity of watching the judicial officer round the period under review. In the very nature of things, the process is complex and the formulation of impressions is a result of multiple factors simultaneously playing in the mind. The perceptions may differ. In the very nature of things there is a difficulty nearing an impossibility in subjecting the entries in confidential rolls to judicial review. Entries either way have serious implications on the service career. Hence the need for fairness, justness and objectivity in performing the inspections and making the entries in the confidential rolls.

Para 34:Rules- where they are, else the executive instructions, require that entries in confidential records are made within a specified time soon following the end of the period under review, generally within three months from the end of the year. Delay in carrying out inspections or making entries frustrates the very purpose sought to be achieved. The mental impressions may fade away or get embellished, not to be restored. Events of succeeding year may cast their shadow on assessment of previous years. Recording of entries for more than one period in one go must be avoided as it is pregnant with the risk of causing such harm as may never be remedied or granting un-deserved benefits. We trust and hope the High Courts would have regard to what we have said and streamline the procedure and practice of inspections and recording of entries in confidential rolls so as to achieve regularity, promptness and objectivity inspiring confidence of subordinate judiciary controlled by them. We can only emphasise upon the High Courts the need for vigilantly carrying out the annual inspections at regular interval and making timely entries in the service records followed by prompt communications to the judicial officers so as to afford them a right of representation in the event of the entry being adverse. We leave the matter at that."

We may, at this stage, also refer to the judgment of the Supreme Court in the case of M.S.Bindra Vs. UOI reported as which throws some light about the manner in which the ACRs are to be recorded, particularly before an officer is to be labelled with doubtful integrity. We quote:

"To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity".

Thus we proceed on the basis that the High Court has to discharge its function with great sense of responsibility. There has to be objectivity while considering the work and conduct of the subordinate judicial officer. Care and caution is to be adopted while making entries in the confidential reports of the judicial officer and annual entry is not an instrument to be wielded like a teacher's cane or to be cracked like a whip. It should not be a reflection of personal whims, fancies or prejudices, likes or dislikes of a superior. The entry must reflect the result of an objective assessment coupled with an effort at guiding the judicial officers to secure an improvement in his performance where need be; to admonish him with the object of removing for future if the shortcoming found; and expressing and appreciation with an idea of toning up and maintaining the immitable qualities by affectionately patting on the back of meritorious and deserving.

Guided by the aforesaid parameters, the first question which falls for examination is as to whether there is any 'material' to sustain the adverse remarks in question recorded for the years 1994 and 1995 in the Annual Confidential Reports of respondent No.1? While learned Single Judge has held that there was no material and learned counsel for respondent No.1 took great pains in making elaborate submissions to support and justify this finding, it is the case of the appellant that this finding is not correct and there is material on record to substantiate the recording of adverse remarks in the Annual Confidential Reports of respondent No.1 for the years 1994 and 1995.

In order to appreciate the controversy, we have to examine as what would be the meaning of the expression 'material' on the basis of which 'C' grading i.e. doubtful integrity can be given to a judicial officer. Let us first understand as to what would constitute the 'material' for the purpose of writing such annual confidential reports.

Dictionary meaning of the word 'material' contextually descried, is as follows:

"Substance, matter, stuff, something, materiality, medium, data, facts, information, figures; notes, notabilia, documents, papers."

When we are examining as to whether there was any 'material' before the High Court on the basis of which adverse remarks were recorded in the confidential report of the respondent, this 'material' relates to substance, matter, data, information etc. Therefore, one has to rely more on the grammatical meaning of the word 'material' as it is defined in the English dictionaries.

We may at once agree with the submission of learned counsel for the appellant that 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. If the 'existence of material' is to mean this kind of evidence as if 'guilt' was to be proved beyond reasonable doubts it would be almost improbable to record grading 'C- doubtful integrity' in respect of a judicial officer. After all the grading given is labelled as "doubtful integrity" and not 'lacking in integrity', which itself is indicative of the nature of 'material' required to sustain such integrity. That is why even in M.S.Bindra's case(supra), The Supreme Court consciously used the text of "preponderance of probability". No doubt one does not have to tarnish the reputation of a judicial officer without any basis and without any 'material' on record, as stated above, but at the same time other equally important interest is also to be safeguarded i.e. ensuring that the corruption does not creep in judicial services and all possible attempts have to be made to contain such a virus from spreading lest it becomes infectious. Therefore, when there are pseudonymous and anonymous complaints against a judicial officer those are to be examined with great caution and circumspection and should not be easily believed. However, on the other hand, when even verbal repeated complaints are received against a judicial officer or on 'discreet' 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, it may form appropriate 'material' for the Full Court while recording ACR of a judicial officer. We quite see that in the system/mechanism adopted by the High Court, possibility of there being an error in forming the opinion about a judicial officer stands minimised. Of course, it is not to say that High Court while recording the ACR of a judicial officer cannot commit mistake. To err is the human nature. Therefore, when the petition is filed challenging recording of adverse remarks in the ACR of a judicial officer, while undertaking judicial review, the Court in an appropriate case may still quash the decision of the Full Court on administrative side if it is found that there is no basis or 'material' on which the ACR of the judicial officer was recorded. However, while undertaking this exercise of judicial review and trying to find out whether there is any material on record or not, it is the duty of the Court to keep in mind the nature of function being discharged by the judicial officer, the delicate nature of the exercise to be performed by the Court on Administrative side while recording the ACR and the mechanism/system adopted in recording such ACR. In the instant case itself, there was first a report of the Inspecting Judge to the effect that he had received complaints against the respondent No.1. It cannot be said that the Inspecting Judge had written those remarks in a casual or whimsical manner. It has to be legitimately presumed that the Inspecting Judge, by making such remarks of serious nature, acted responsibly. Thereafter Full Court considered the entire issue and endorsed the view of the Inspecting Judge while recording the ACR of respondent No.1 for the years 1994 and 1995. Had matter rested here probably one could have still argued that the making of remarks only on the basis that the Inspecting Judge had received some complaints, would not constitute 'material' or 'sufficient material'. However, on the representation made by the respondent No.1 for expunging the adverse remarks third time exercise is done by constituting Four Member Committee. The Four Member Committee does not do routine or casual exercise. It not only calls for relevant files but also makes enquiries. The application of mind while doing this exercise is also writ large inasmuch as in the report submitted by the Four Member Committee in respect of 18 judicial officers, representations of some of the judicial officers are in fact accepted. Nobody can dispute, nor it is disputed in the instant case, that Committee acted impartially, without any oblique motive, illwill or bias against respondent No.1. It consisted of senior Judges. There are no allegations of mala fides also. This report was again considered by the Full Court which is the exercise done fourth time. What is stated about the Committee equally applies to Full Court. Therefore, in our opinion all this including the report of the Committee on the basis of records and enquiries mentioned therein, would constitute 'material' which could become the basis of sustaining adverse Confidential Reports of the respondent No.1 for the years 1994 and 1995.

It is a matter of common knowledge that the complaints which are made against a judicial officer, orally or in writing, are dealt with by the Inspecting Judge or the High Court with great caution. Knowing that most of such complaints are frivolous and by disgruntled elements, there is generally a tendency to discard them. However, when the suspicion arises regarding the integrity of a judicial officer, whether on the basis of complaints or information received from other sources and a committee is formed to look into the same, as in the instant case, and the committee undertakes the task, by gathering information from various sources as are available to it. On the basis of information received from such sources perception about the concerned judicial officer is formed. The sporadic, malicious or vague complaints are to be distinguished from the series of instances/complaints from cross-section which lead to formation of general impression about a person. Such an opinion and impression formed consciously and rationally, after the inquiries of the nature mentioned above, would definitely constitute 'material' for recording adverse report in respect of an officer. Such an impression is not readily formed but after great circumspection, deliberation and prudence. It is a case of preponderance of probability for nurturing such a doubt about respondent No.1 which is based upon substance, matter, information etc.

In view of the aforesaid discussion, we do not agree with the conclusion of the learned Single Judge that adverse remarks have been made on the basis of conjectures and without any material on record. We may add here that the use of expression 'discrete' in Four Member Committee report is clearly a typographical error. The dictionary meaning of the word 'discrete' is 'separate, distinct, detach, disconnected, disjunct, etc.' Likewise the dictionary meaning of word 'discreet' is 'careful, prudent, wise, cautious, judicious; guarded, circumspect; aware, alert, awake; diplomatic, tactful, politic, strategic. Once we read that part of the report where the word occurs, it would be apparent that the intention was to use the word 'discreet' as otherwise the sentence will not make any sense in the context in which it is used in the report. Therefore, we cannot allow the respondent No.1 to capitalise on this typographical, but otherwise innocent, mistake. The learned Single Judge, in the impugned judgment, has observed that there is nothing in the personal files or complaint files of respondent No.1 which could warrant any action against him. This may be so. However issue originated as Inspecting Judge had received complaints. Further it cannot be ruled out that on the basis of discreet enquiries made by the Committee, an opinion was formed and information collected in such enquiries by itself could constitute sufficient material which becomes the basis of recording ACR. If on the basis of such enquiries and opinion and a general impression is formed about a judicial officer, which formation is bonafide that would become 'material' for recording ACRs. It is not necessary that the details about such enquiries are to be stated in the report by giving names of the persons who could give an account of the conduct of respondent No.1. We have already indicated that by very nature of the function of a judicial officer persons would not like to give complaint in writing or like to have their names recorded. Once the Committee collects the 'material' and forms an opinion on the basis of such enquiries, one has to believe that opinion must have been formed after satisfying itself about the manner and substance of the enquiries. We feel that it is not a case of mere possibility but it is a case of preponderance of probability where reasonable man could entertain doubt regarding the possibility that respondent No.1 was a person of 'doubtful integrity'. We shall have to legitimately presume that the Committee undertook the exercise faithfully, that it deliberated on the issue in all earnest and that it took due care and caution in analysing the information received before it formed the opinion about the respondent No.1. Otherwise it would become impossible for the system to work. At this juncture, it would be apposite to refer to the following observations of the Supreme Court recorded in the case of High Court of Judicature at Bombay through its Registrar vs. Shashikant S.Patil and Anr. :

"Para 22: It is the Full Court of all Judges of the High Court of Bombay which has authorised the Disciplinary Committee of five Judges of that High Court to exercise the functions of the High court in respect of punishment of judicial officers. Such functions involve exercise of the powers envisaged in Article 235 of the Constitution. It is the constitutional duty of every High Court, on the administrative side, to keep guard over the subordinate judiciary functioning within its domain. While it is imperative for the High Court to protect honest judicial officers against all ill-conceived or motivated complaints, the High Court cannot afford to bypass any dishonest performance of a Member of the subordinate judiciary. Dishonesty is the stark antithesis of of judicial probity. Any instance of a High Court condoning or compromisigtn with a dishonest deed of one of its officers would only be contributing to erosion of the judicial foundation. Every hour we must remind ourselves that the judiciary floats only over the confidence of the people in its probity. Such confidence is the foundation on which the pillars of the judiciary are built.

Para 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 offices of great trust and responsibility. If a judicial officer "tips the scales of justice its rippling effect would be disastrous and deleterious". A dishonest judicial personage is an oxymoron. We wish to quote the following observations made by Ramaswamy, J., in High Court of Judicature at Bombay Vs. Shirishkumar Rangrao Patil: (SCC p.358, para 16)

"The lymph nodes (cancerous cells) of corruption constantly keep creeping into the vital veins of the judiciary and the need to step it out by judicial surgery lies on the judiciary itself by its self-imposed or corrective measures or disciplinary action under the doctrine of control enshrined in Articles 235, 124(6) of the Constitution. It would, therefore, be necessary that there should be constant vigil by the High court concerned on its subordinate judiciary and self-introspection."

Para 24: When such a constitutional function was exercised by the administrative side of the High Court any judicial review thereon should have been made not only with great care and circumspection, but confining strictly to the parameters set by this Court in the afore-cited decisions. In the present case, as per the judgment under appeal the Division Bench of the Bombay High Court appears to have snipped off the decision of the Disciplinary Committee of the High Court as if the Bench had appeal powers over the decision of the five Judges on the administrative side. At any rate the Division Bench has clearly exceeded its jurisdictional frontiers by interfering with such an order passed by the High Court on the administrative side."

Therefore, where on the one hand good performance, integrity and uprightness of a an officer needs to be patted with, it is also necessary to admonish a judicial officer in whom shortcomings are found. That is what is the guiding principle laid down by the Apex Court in various judgments including in the cases of Bishwanath Prasad Singh(supra) and Shashikant S.Patil (supra).

The argument of the learned counsel for the respondent No.1 that the court had reposed faith in him by assigning him important duties is of no relevance inasmuch as these duties were assigned to the respondent No.1 routinely. It is a matter of common knowledge that while assigning such duties, High Court does not go strictly by seniority or merit. Therefore, the respondent No.1 cannot draw any mileage out of this. Moreover, the inspecting Judge brought the information to the knowledge of Full court subsequent to this posting which led to the enquiries, and therefore, assignment of these duties would be of no consequence. Further, no doubt the entries for two years are recorded on one date and that should not generally be a practice. However, this circumstance is not sufficient to justify quashing of the concerned annual confidential reports when there is 'material' to justify the entries. Moreover there may be some delay in recording ACR of 1994 only and there is no delay in recording ACR of the year 1995. We hope that the High Court would take proper care in this regard particularly after the observations of the Apex Court in the case of Bishwanath Prasad Singh (supra).

We, therefore, set aside the order of the learned Single Judge on this point whereby the grading 'C' given to respondent No.1 for the years 1994 and 1995 was quashed/expunged by the learned Single Judge.

Because of the view we have taken while discussing the point No.1 above, it may not be necessary to deal with points No. 2 and 3. However, still keeping in view their nature and importance, we would like to deal with these aspects on the presumption that the learned Single Judge had rightly quashed the grading 'C' given to respondent No.1 by the High Court.

Point No.II: RE: GRADING B+ TO RESPONDENT NO.1 BY THE LEARNED SINGLE JUDGE:

If it is presumed that the decision of the learned Single Judge in setting aside the grading given by the High Court is accepted, could learned Single Judge himself assign the grading to respondent No.1 declaring that he is deemed to have been graded B+ for the years 1994 and 1995? While learned counsel for the appellant argued that in such an eventuality, it would have been proper for the learned Single Judge to refer the case back to the High Court for recording appropriate grading to respondent No.1 as it is the function of the High Court on administrative side which is the appropriate authority to record ACRs of the judicial officers and not the function of the Court on judicial side, counsel for respondent No.1 attempted to justify the exercise undertaken by the learned Single Judge by contending that powers of High Court under Article 226 were all pervading and in appropriate case such inherent powers could be exercised to do complete justice. It was also argued that in the instant case, the appellant could not point out as to how the power exercised by the learned Single Judge was wrong or improper. Moreover, it was not stated that it was the jurisdiction of Full Court only to record the ACRs of a judicial officer and High Court on judicial side could not do so.

It is an admitted case of the parties that Inspecting Judge records the ACR of a judicial officer under his supervision in a given format and the same is placed before the administrative side of the High Court in its Full Court meeting and it is the Full Court which assigns a grading that is ultimately recorded in the ACR of the judicial officer. This position also cannot be disputed that it is not necessary that the Full Court would endorse the same grading as given by the Inspecting Judge. The Full Court can, after deliberations, give better grading or lower the grading than what is proposed by the Inspecting Judge. Therefore, even if it is presumed that there was no material before the Full Court on the basis of which respondent No.1 was given Grading C for the years 1994 and 1995 and that grading is to be quashed, it is not necessary that in such an eventuality Full Court would have given the grading of B+ to respondent No.1. Thus after setting aside the remarks given by Full Court to respondent No.1 for the years 1994 and 1995, it was appropriate to remit the matter to the Full Court to give appropriate grading to respondent No.1. It may be significant to observe here that for the year 1994, the Inspecting Judge had proposed B+ grading and for the year 1995, no grading at all was recorded by the Inspecting Judge. Thus it is normally the function of the competent authority, the Full Court in the instant case, to assign suitable grading in the ACRs of the judicial officer. This function of the Full Court should not have been assumed by the learned Single Judge i.e. to do the exercise himself and come to the conclusion as to what is the appropriate grading which should have been given by the Full Court in the given circumstances and assign that grading. While awarding this grading, the learned Single Judge has given the following justification:

"While granting the relief the Court has to consider the facts and circumstances of a given case. In the instant case, the petitioner right from 1987 had been given the grading B+. In 1994 the learned Inspecting Judge had granted B+. In the absence of any material sustaining the view taken by the High Court, the petitioner is entitled to the grading B+. In this behalf it is necessary to notice the principles adumbrated of the judgment of the Supreme Court in . Therefore, it is hereby declared that the petitioner is deemed to have been graded B+ for the years 1994 and 1995."

The observations made in the aforesaid para would show that the learned Single Judge was influenced by the following factors in coming to the conclusion that respondent No.1 was entitled to the grading B+:

a) The respondent no.1 right from 1987 had been given grading B+.

b) In 1994 the learned Inspecting Judge had granted the grading of B+.

c) There was no material sustaining the view taken by the High Court (i.e. in respect of grading C given by the High Court).

We are not impressed by the reasoning given by the learned Single Judge in support of his conclusion. Merely because the respondent no.1 was given grading B+ from 1987 to 1993 is no ground to presume that this grading would be maintained in future as well. Similarly as already pointed out, it is not necessary that the grading given by the Inspecting Judge would be maintained by the Full Court after deliberations. If this argument is accepted, then there is no need for any deliberations by the Full Court. Further even if it is presumed that there was no material for sustaining the view taken by the High Court the only consequence thereof would be to quash the grading C given by the High Court as the learned Single Judge was dealing with the question of existence of material in the context of the award of grading C by the High Court. From this also it would not automatically follow that if grading C awarded by the High Court is to go, respondent No.1 would necessarily be entitled to grading B+. Moreover, no basis is given as to how the respondent No.1 would be deemed to have been graded B+ for the year 1995 as well when admittedly for this year even the Inspecting Judge of respondent No.1 had not given any grading.

Faced with the aforesaid situation, learned counsel for respondent No.1 still sought to justify the exercise done by the learned Single Judge in granting the grading of B+ to respondent no.1 for the years 1994 and 1995. His submission was that High Court in its extraordinary jurisdiction under Article 226 of India has all the powers to do justice. There is no prohibition. It was further submitted that in the instant case it was a mechanical exercise, keeping in view the various columns of the formats of ACR of respondent No.1 for the years 1994 and 1995 being filled by the Inspecting Judge, inasmuch as the work of the respondent No.1 in those columns was taken as reasonably good. Moreover, first five columns of the format for the year 1994 when compared with first five columns of the form for the year 1995 would show that the remarks were substantially the same. If in the year 1994 the Inspecting Judge on the basis of these five columns could award him B+ and once the question of integrity of respondent no.1 was found to be incorrect, on the basis of first five columns, respondent No.1 was entitled to B+ grading. The argument is fallacious. First of all, it presumes that grading B+ for the year 1994 suggested or proposed by the Inspecting Judge would be maintained by the Full Court also. It may be stated at the cost of repetition that even if grading C is quashed on the ground that there was no material to support this grading, it is not necessary that grading B+ would be accepted by the High Court. Once that is so, it cannot be said that for the year 1995 also grading would be B+. The appropriate course would have been to refer the matter back to the High Court so that High Court deliberates the matter all over again in view of the judgment of the Single Judge and applying its mind afresh, decides as to what grading is to be given to respondent No.1.

Learned counsel for respondent No.1 took pains to argue that High Court in its extraordinary jurisdiction under Article 226 has all the powers to do justice order deemed grading of respondent No.1 and give direction to promote him on that basis. In addition to the reliance placed on the judgments cited by the and this power was not fettered by any such limitations. It was wide enough to learned Single Judge in the impugned judgment reference was also made to the following passage from the judgment of Allahabad High Court in Raj Narayan Vs. Bhim :

"Mahmud J. says that Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Court, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed."

The counsel also relied upon the observations of the Supreme Court in the case of Manohar Vs. Hira Lal reported in AIR 1962 SC 532 wherein principle relating to the exercise of inherent powers has been discussed. This is however a case on the interpretation of Section 151 of Code of Civil Procedure and would not come to the aid of the respondent No.1. Reliance was also placed on the judgment of Punjab & Haryana High Court in the case of Punjab & Haryana High Court Vs. Ishwarchand Jain vide LPA No.148/99 decided on 24th August, 2000 and submitted that while quashing the downgrading of the judicial officer by the Full Court of that High Court, the Division Bench restored the original grading. It seems that the Court did so mechanically and in any case, issue regarding power of the Court to do so was neither raised nor answered. In so far as judgments of the Supreme Court referred to in the impugned judgment of the learned Single Judge are concerned, which are quoted in para 98 of the judgment and reproduced above, suffice is to state that none of these judgments deal with the proposition that Court could have itself given the grading to the concerned judicial officer. Judgments relate to the cases where compulsory retirement of the concerned judicial officer was challenged and was quashed on the ground that the particular adverse report which was made the basis of said challenge was not sustainable on the facts of those cases. However, no proposition of law is laid down in any of these judgments to the effect that after expunging the adverse remarks in exercise of its powers of judicial review, Court could itself give the grading to a particular officer. The powers of the High Court under Article 226 of the Constitution of India to issue a particular writ may be wide enough. However, it hardly needs to be emphasised that there are self-imposed restrictions on the exercise of such power by Courts. The remedy under Article 226 is afterall discretionary in nature. It is a rule of prudence or public policy that normally the High Court would not like to exercise such discretion where alternate efficacious remedy is available or where the petition suffers from unexplained laches and delays or where the issuance of writ would be futile or the question involved is academic in nature or the determination of question demands an elaborate examination of evidence to establish the right to enforce etc. Likewise under Article 226 the High Court will not ordinarily interfere with service matters which are committed to the determination of the executive like recording of ACRs, quantum of punishment in disciplinary matters or consideration of candidate's appointment for promotions etc. Keeping in view these principles in mind, when we look into the facts of this case, we are of the view that the learned Single Judge should not have taken upon himself the task of writing the Confidential Reports of respondent No.1. There were no such compelling circumstances or peculiar features present in this case which could have prompted the learned Single Judge to tread such a course. Therefore, we set aside the direction given by the learned Single Judge whereby the respondent No.1 is declared to have been graded B+ for the years 1994 and 1995.

Point No.III

The learned Single Judge has further declared respondent No.1 to have been promoted to DHJS w.e.f. 18th May, 1996. While doing this, the learned Single Judge has noted in the impugned judgment that on 18th May, 1996 when the Full Court had considered the case for promotions of officers to this Court, all those with B+ grading and above were promoted and on the basis of grading also the promotions had been granted. Therefore, this direction is based upon the direction of the learned Single Judge in awarding grading B+ to respondent No.1 which the learned Single Judge should not have done as discussed in point No.2 above. Once that is the conclusion arrived at by us directions to treat the respondent No.1 as promoted w.e.f. 18th May, 1996 automatically goes. We are not commenting upon the observations of the learned Single Judge to the effect that all the judicial officers with the grading of B+ and above were promoted, and therefore, respondent No.1 is also entitled to promotion. Even if it is assumed to be so, still, it is the function of the promotion committee/competent authority(Full Court in this case), which is normally supposed to consider the cases of promotion and pass appropriate orders. The detailed discussion on point No.2 covers point No.3 as well. Additionally, it may be mentioned that the Courts normally do not direct the authority to promote a particular officer but the only direction which can be given is to consider the case of the said officer for promotion according to law. ( Lakshmipathi Vs. DEO 1992 (2) UJSC 459, Chief Engineer and Secy., Engineering Department Vs. Kamlesh Baboo 1993 supp (2) SCC, 628 Administrator, Dadra & Nagar Haveli Vs. H.P. Vora , State of Bank of India Vs. Maiyunidin, AIR 1987 SC 1189, High Court of M.P. Vs. Mahesh Prakash & Ors., . This principle has been reiterated by the Supreme Court in a recent judgment entitled UOI & Ors. Vs. Lt. General Rajinder Singh Katyan & Anr. .

We may point out here that the learned counsel for respondent has referred to the following judgments in support of his submission that direction for promotion can be given by the Court.

1. The State of Bihar Vs. Dr. Braj Kumar Mishra & Ors. .

2. S.B.Mathur Vs. UOI 1997 VI AD (Delhi) 1042.

3. Zile Singh Vs. The Haryana State Agricultural Marketing Board & Ors., 1997 (4) SLR 293.

4. Major Joginder Singh Gill Vs. UOI & Ors., (4) 2000 IV AD (Delhi).

We find that none of these judgments is applicable on the facts of this case. In Dr. Braj Kumar Mishra's case (supra) the Supreme Court itself has remarked that normally the Court after quashing the impugned order should remand the matter to the concerned authority for deciding the issue afresh. However, the Court said that in specified cases like the case in hand where all the facts were admitted regarding the eligibility of respondent and his possessing of the requisite qualifications, remand to the authorities would have been merely a ritual and ceremonial. We have already observed that present case is not of this nature. Similarly S.B.Mathur's case(supra) was a case where petitioner had already been superannuated and the question was of monetary benefits only. Likewise in the case of Zile Singh (supra) the directions were given on the peculiar facts of that case. Moreover we find that in that case decided by Punjab & Haryana High Court, with due respect to the Court deciding the case, in one breath the Court said that petitioner was entitled to be considered for promotion to the post of Fee Collector and in the same breath, directions for promotions were given. Without commenting further it may also be noted that it was a case where under the relevant rules seniority was the only criteria for promotion and it was found that persons junior to the petitioner had been promoted without considering the claim of the petitioner for promotion. Similarly in the case of Major Joginder Singh Gill (supra) it was found that petitioner was not promoted only because the seniority fixed earlier was disturbed and the petitioner was treated as junior to respondents 5 and 31. It was observed that had the seniority fixed as per original para 11 was allowed to be remained, petitioner would have got promotion as Lt. Colonel. Further petitioner had retired long ago i.e. in the year 1983 and the question was only for enjoying status of Lt. Colonel. In these peculiar circumstances, relief was given only to the extent that he should be treated as promoted to the rank of Lt. Colonel. Similarly the facts of Badri Nath (supra) would show that the directions were given in view of long and unfortunate history of that case.

It may be significant to point out here that even the learned counsel for respondent No.1 admitted that the general principle is that it is not the province of the Court to issue a mandamus to promote a particular officer. His submission was that this is not the absolute principle and there may be exceptions to this general principle. He argued that the present case was of exceptional nature and tried to justify the directions given by the learned Single Judge by listing these exceptional circumstances and submitting that 48 officers junior to respondent No.1 had already been promoted and it was humiliating and torturing for respondent No.1 to act in a lower post than his juniors. However, this cannot be treated as exceptional circumstance inasmuch as in all cases where a person is denied promotion and juniors are promoted, element of supersession would exist. If this is to be treated as exceptional circumstance then it would be available in almost all cases and this so-called exception would annihilate the general principle itself.

The result of this discussion is that the appeal of the appellant succeeds on point No.3 as well inasmuch as it was not proper for the learned Single Judge to give directions to the effect that the respondent No.1 stands promoted to DHJS w.e.f. 18th May, 1996.

To summarise, it is held:

a) The adverse remarks recorded by the High Court in the Confidential Reports of respondent No.1 for the years 1994 and 1995 were not without any material. They were recorded on the basis of 'material' on record and the judgment of the learned Single Judge quashing those remarks is hereby set aside.

b) The learned Single Judge should not and could not have graded B+ to respondent No.1 as it is the function of the High Court to assign appropriate grading. Therefore, the matter should have been referred to the Full Court for giving appropriate grading. This direction of the learned Single Judge is accordingly set aside.

c) Direction of the learned Single Judge in treating the petitioner as promoted w.e.f. 18th May, 1996 is not correct in law and is therefore set aside.

The point No.2 is decided on the presumption that the judgment of the learned Single Judge on point No.1 was sustainable and point No.3 is decided on the presumption that judgment of the learned Single Judge on point No.1 and even on point No.2, was sustainable.

This appeal is, therefore, allowed. The impugned judgment of the learned Single Judge is set aside. The CWP No.4334/97 filed by the petitioner stands dismissed.

There shall be no order as to costs.