P.D. Jharwal (Deceased) Through ... vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 814 Del

JUDGMENT

S.B. Sinha, C.J.

1. P.O. Jharwal, original petitioner, since deceased was a member of Delhi Judicial Service. He was a direct recruit having been appointed in the year 1973. He joined his services on 1st May 1975. Prior thereto he was a member of Rajasthan Judicial Service. By reason of letter dated 31st October 1992, he was intimated that/for the, years 1989-90, 1990-91 and .1991-92 he has been given .the. remarks 'B', 'B' and 'C' respectively. Although he was not asked to submit a representation as against the said/purported adverse remark, on the ground that he was not informed as to on what basis such remarks were made, a representation was filed by him.

2. It has been contended that Annual Confidential Reports (in short 'ACRs'.) are given on the work and conduct of the Officer, having regard to; (i) the ACR recorded by the learned District and Sessions Judge (ii) the remarks recorded by the High Court on the monthly disposal of the work (iii) the remarks recorded by. the Inspecting Judge, and (iv) the reputation of the officer concerned.

3. In his afore-mentioned representation it was contended that neither he had been communicated with any remarks recorded by the District and Sessions Judge nor by the Inspecting Judge. His further contention was that his monthly disposal of work was good and his good reputation has never been doubted.

4. A meeting of the Full Court was held to consider his afore-mentioned representation on or about 20th March 1993 and on consideration thereof the same was rejected. The said resolution of this Full Court was communicated to him on 6th April 1993. The matter was thereafter placed before a Screening Committee, which submitted its report on 21st May 1993 In furtherance whereof the matter was again placed before the Full Court on 22nd May 1993 wherein a resolution was adopted to the effect that the judicial work be withdrawn from him with immediate effect. The said resolution of the Full Court was communicated to the petitioner on or about 24th May 1993. it has been placed on record that thereafter in some newspapers it was reported that three judicial officers of the Delhi District Courts were being dismissed of the ground of "doubtful intergrity" on or about 1st June 1993. A letter of respondent No. 3 herein, (Administrator of National Capital Territory of Delhi), was served on him purported to be on the recommendation of the respondent No. 2, whereby and whereunder, he was informed that he was to be compulsorily retired, in terms of Clause 56(j) of Fundamental Rules and Supplementary Rules, 1922 read with Rule 33 of the Delhi Judicial Service Rules.

5. Aggrieved thereby a representation was filed by him before the third respondent vide his letter dated 21st June 1993 which was placed before the Full Court on 16th August 1993. The said representation was rejected by the Full Court. On the afore-mentioned premise the petitioner has filed this writ petition, inter alia, praying for the following reliefs :

(a) issue a writ of certiorari or any other appropriate writ, order or direction for quashing the impugned order dated 1.6.1993 passed by the respondent No. 3 read with order dated 24.5.1993 compulsorily retiring the petitioner on the recommendation of respondent No. 2 and order dated 1.9.1993 passed by respondent No. 3 rejecting the representation of the petitioner;

(b) issue a writ of mandamus or any other appropriate writ order or direction directing the respondents to reinstate the petitioner in service with all consequential benefits."

6. Counter affidavit has been filed by the Delhi High Court, wherein it has been contended that the ACR of a judicial officer is sub-divided into various grades. Grade-B denotes "average", whereas Grade-C denotes "below average", it was contended that although remark-'C' was an adverse one, inadvertently it had not been mentioned that the officer may represent there against, but as he had made a representation he cannot be said to be prejudiced. It has been contended that the impugned order of compulsory, retirement was recommended by the High Court, in terms of Rule 56(j) of Fundamental Rules, having regard to the entire record of the petitioner which had been considered by the Screening Committee. The Full Court adopted a resolution upon consideration of all relevant materials and in public interest.

7. Mr. P.P. Khurana, learned Senior Counsel appearing on behalf of the petitioner, would contend that the respondents herein, in their counter affidavit, have not traversed the factual allegation made in the writ petition nor denied the absence of any instruction as regards the mode and manner in which the case of an employee is required to be considered before he is directed to be compulsorily retired. Learned 'counsel would submit that before an order is passed, the adverse report, if any, must be communicated so as to enable the concerned officer to improve his performance. According to the learned counsel such adverse remarks must be recorded on regular basis and should not be recorded for a number of years at one go. Strong reliance has been placed upon a Division Bench judgment of this Court in Padam Singh v. Union of India and Ors., (CWP No. 3872/93) disposed of on 18th February 2000. The learned counsel would contend that, from a perusal thereof, it would appear that this court had set aside similar orders of compulsory retirement on the ground of absence of any material whatsoever on the basis whereof a satisfaction could be arrived at for passing an order in terms of FR 56(j) learned counsel has further in support of his contention relied upon the following decisions of the Apex Court :-

(a)     M.A. Rajasekhar v. State of Karnataka and Anr., ;
 

(b)     Sukhdeo v. Commissioner Amravati Division, Amravati and Anr., (1996) 5 SCC 703;
 

(c)     Madan Mohan Choudhary v. State of Bihar and Ors., ;
 

(d)     State of Haryana v. P.C. Wadhwa, IPS, Inspector General of Police and Anr., ,
 

(e)     Baby v. Travancore Devaswom Board and Ors., ,
 

(f)     High Court of Punjab & Haryana through R.G. v. Ishwar Chand Jain and Anr., ,
 

(g)     High Court of Judicature at Allahabad through Registrar v. Sarnam Singh and Anr., ;
 

(h)     High Court of Delhi (through its Registrar) v Purshottam Das Gupta & Ors., 2001 II AD Delhi 907 equivalent to . 
 

8. Mr. Neeraj K. Kaul, learned counsel appearing on behalf of the 2nd respondent, however, would submit that the question as to whether an order of compulsory retirement would be passed by the State against a judicial officer would inter alia depend upon his knowledge in law, quality of judgment and conduct and not necessarily for lack of integrity. Once it is found, Mr. Kaul would contend, that the order was passed in public interest on the basis of the relevant materials, this Court in exercise of 'its jurisdiction under Article 226 of the Constitution of India would not interfere therewith. Learned counsel would submit that the Court does not sit in appeal over the decision of the Full Court. Reliance in this connection has been placed on Allahabad Bank Officers' Association and Anr., v. Allahabad Bank and Ors., . Mr. Kaul would argue that the materials available on record against the petitioner having been considered by the Screening Committee comprising of two Senior Judges of this Court, and which have been taken into consideration by the. Full Court together with the materials placed by the said judicial officer in his representation, the impugned order cannot be held to be bad in law. In support of his afore-mentioned contention strong reliance has been placed on a decision of the Apex Court in State of Gujarat v. Umedbhai M. Patel, (2001) 3 SCC 314, Learned counsel distinguished the decision in Padam Singh v. Union of India and Ors., (CWP 3872/93) on the ground that therein this Court found that their existed no material on record to prove the charge of lack of integrity. According to the learned counsel, the scope of judicial review of this Court, in a matter of this nature is very limited, in so far as, even if the Court may take a different view than by the employer, the power of judicial review may not be exercised. Reliance, in this connection, has been placed on the following decisions :

(a)     Union of India etc. v. M.E. Reddy and Anr., :
 

(b)     Baikuntha Nath Das and Anr. v. Chief Distt. Medical Officer, Baripada and Anr., :
 

(c)     The High Court of Judicature at Bombay v. Shashikant S. Patil and Anr., :
 

(d)     State of U.P. and Anr. v. Bihari Lal, ;
 

(e)     Posts and Telegraphs Board and Ors. v. C.S.N. Murthy, .
 

9. Fundamental Rule 56 occurring in Chapter IX of Fundamental and Supplementary Rules, 1922 deals with retirement Clause (j) of Fundamental Rule 56 is an exception to the General Rules, which is as under:

"56 (j). Notwithstanding anything contained in this rule, the Appropriate Authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice;

(i) If he is, in Group 'A' or Group 'B' service or post in a substantive, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years ;

(ii) In any other case after he has attained the age of fifty-five years.

10. The said rule contains non-obstante Clause. It is not in dispute that the petitioner fulfills the conditions for invoking the said rule as contained in Clause (i) thereof. An order of compulsory retirement is neither punitive nor stigmatic. It is now well settled that the said rule is to be invoked in a case where the employee has become a dead wood. The principles which emerge from various decisions of the Apex Court are set out hereunder as has been noticed by the Apex Court in State of Gujarat (supra) :

"The law relating to compulsory retirement has now crystallized into definite principles, which would be broadly summarized thus :

(i) whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

(ii)     Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
 

(iii)     For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
 

(iv)     Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
 

(v)     Even uncommunicated entries in the confidential record can also be taken into consideration.
 

(vi)     The order of compulsory retirement shall not be passed as a short
cut to avoid departmental enquiry when such course is more
desirable. 
 

(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favor of the officer.
 

(viii)     Compulsory  retirement  shall  not  be  imposed  as a  punitive
 

measure.  
 

11. The Apex Court in Baikuntha Nath Das's case (supra) has laid down the following principles :
   

32. The following principles emerge from the above discussion :
   

(i)     An order of compulsory retirement is not punishment. It implies no stigma nor any suggestion of misbehavior.
 

(ii)     The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of The Government.
 

(iii)     Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) ma/a fide, or (b) that it is based on no evidence, or (c) that it is arbitrary in . the sense that no reasonable person would form the requisite opinion oh the given material in short; it is found to be a perverse order.
 

(iv)     The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favorable and adverse.
 

If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.

(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.

Interference is permissible only on the grounds mentioned in (iii) above. This object has been discussed in paras 29 to 31 above."

12. It is also well settled that the scope of judicial review of this Court under Article 226 of the Constitution of India would be very limited, inasmuch as, the decision to pass an order of compulsory retirement is based on subjective satisfaction of the employer although the criteria therefore would be objective. The grounds ordinarily which are available to a Court for interfering with such an order of compulsory retirement are (i) non-application, of mind (ii) perversity, and (3) ma/a fide.

13. The case of a judicial officer in the matter of a compulsory retirement may stand on a slightly different footing than any other officer. We, may however hasten to add that by and large, however, the consideration in relation to all categories of officers may be identical but distinctiqn being that, having regard to the varied nature of the litigations, the Court had all along been taking a pivotal role for social clinging. The Judges are considered to be performing a divine function. Justice as is well know must not only be done but also manifestly seem to be done. The independence of the judiciary largely depends upon the functioning of the individual officer and any black spot may be sufficient to bring a bad name to the entire institution. We may notice that in All India Judges' Association v. Union of India, the Apex Court observed that the judicial service is not a service in the sense of employment.

14. The Apex Court in the afore-mentioned case while considering an application for review of its earlier decision, in terms where of age of superannuation of the judicial officers had been extended from 58 to 60 years, laid down a law that such extension of service would not be automatic. It was held :

"To sum .up, we hold as follows :

(a) xxxxxxxxxxxxxxxxxxxxxx

(b) The direction with regard to the enhancement of the superannuation age is modified as follows :

While the superannuation age of every subordinate judicial officer shall stand extended up to 60 years, the respective High Courts should, as stated above, assess and evaluate the record of the judicial officer for his continued utility well within time before he attains the age of 58 years by following the procedure for the compulsory retirement under the Service rules applicable to him and give him the benefit of the extended superannuation age from 58 to 60 years only if he is found

fit and eligible to continue in service, in case he is not found fit and eligible, he should be compulsorily retired on his attaining the age of 58 years.

The assessment in question should be done before the attainment of the age of 58 years even in cases where the earlier superannuation age was less than 58 years.

The assessment directed .here is for evaluating the eligibility to continue in service beyond 58 years of age and is in addition to and independent of the assessment- for compulsory retirement that may have to be undertaken under the . relevant service rules, at the earlier stage/s.

Since the service conditions with regard to superannuation age of the existing judicial officers is hereby changed, those judicial officers who are not desirous of availing of the benefit of the enhanced superannuation age with the condition for compulsory retirement at the age of 58 years have the option to retire at the age of 58 years. They should exercise this option in writing before they attain the age of 57 years. Those who do not exercise the said option before they attain the age of 57 years would be deemed to have opted for continuing in service till the enhanced superannuation age of 60 years with the liability to compulsory retirement at the age of 58 years.

Those who have crossed the age of 57 years and those who cross the age of 58 years soon after the date of this decision will exercise their option within one month from the date of this decision. If they do not do so, they will be deemed to have opted for continuing in service till the age of 60 years. In that case, they will also be subjected to the review for compulsory retirement, if any, notwithstanding the fact that there was not enough time to undertake such review before they attained the age of 58 years. However in their case, the review should be undertaken within two months from the date of the expiry of the period given to them above for exercising their option, and if found unfit, they should be retired compulsorily according to the procedure for compulsory retirement under the Rules.

Those judicial officers who have already crossed the age of 58 years will not be subjected to the review for compulsory retirement and will continue in service up to the extended superannuation age of 60 years since they have had no opportunity to exercise their option and no review for compulsory retirement could be undertaken in their case before they reached the age of 58 years."

15. Furthermore the High Courts exclusively have a control over judicial officers in terms of Article 235 of the Constitution of India. The judgments of the judicial officers are not only placed before the Inspecting Judges but also they are the subject matter of judicial scrutiny by the High Court while exercising appellate or revisional jurisdiction. By and large over a span of time most of the Judges of the High Court come to know about the capability of the judicial officers as also his general reputation. Our observations, however, may not be taken to mean that the confidential reports have no role to play. They do have a vital role to play and in fact whenever a recommendation is made for compulsory retirement of a judicial officer the relevant material would be those, which are on records. What would be such material, has been considered by the Division Bench of this Court in Purshottam Das Gupta (supra), wherein one of us (A.K. Sikri, J.) was a Member.

Considering a large number of decisions most of which have been referred to at the bar in relation to recording of ACRs, it was observed :

"22. 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 of ficer. 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, like 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 imitable qualities by affectionately patting on the back of meritorious and deserving.

Furthermore it was observed :

26. 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.

27. 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 labeled 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 office stands minimized. 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 office, 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 fond that there is no basis of '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 machanism/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 make 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, ill will 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.

28. 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 informati6n 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."

16. Can in the afore-mentioned situation be said that there had been no material before this Court to arrive at a subjective satisfaction.

17. No allegation of mala fide has been made nor could be made in view of the fact that the decision has been taken by the entire Full Court.

18. It cannot further be said that there had been no application of mind whatsoever by the Full Court in deciding the matter.

19. In the afore-mentioned background the decisions relied upon by Mr. Khurana may be noticed.

20. In M.A. Rajasekhar (supra) the Supreme Court was concerned with an adverse remark made against the Tehsildar for the year 1988-89 to the following effect:

"Competent, good at getting work done, but does not act dispassionately when faced with dilemma."

21. The Court observed that before writing such adverse reports the petitioner ought to have been given an opportunity to correct himself of the mistakes and even when he acted in a dilemma and lack of objectively he could have been guided by the authority as to the manner in which he wold act upon. The said decision has no application in the fact of the matter.

22. In State of Bihar and Ors. (supra), the Apex Court was dealing with the case of judicial officers who had been compulsorily retired. The judicial officer had all along been assigned good remarks.

In that case a decision was taken by the Administrative Committee that his service be not extended. Thereafter only the entries for three years, viz. 1991-92, 1992-93 and 1993-94 were recorded at one go. They were communicated to the judicial officer on 29th November 1996 and on the next day the Full Court took a decision to retire him from service without giving any opportunity to him to make a representation. The expression "at one go" was used by High Court in its affidavit. In the afore-mentioned situation, it was observed :

"The expression used by the High" Court in the counter-affidavit filed in this Court in relation to the entire for the aforesaid three years is that they were recorded "at one go". And, we may add, the officer was made to go ! The date on which these entries were made is not indicated either in the original record or in the counter-affidavit filed by the respondents. These are communicated to the appellant on 29.11.1996 and were considered by the Full Court on 30.11.1996 but it is clear that these entire were recorded at a stage when the Standing Committee had already made up its mind to compulsorily retire the appellant from service as it had directed the office on 6th November 1996 to put up a note for compulsory retirement of the appellant. The High Court should have considered that all entire prior to his promotion to the Superior Judicial Service were not bade and his integrity either as a member of the Inferior Judicial Service or Superior Judicial Service was never doubted."

23. What was considered by the High Court in giving such adverse remark is that he had granted anticipatory bail in a case under Section 307 of the Indian Penal Code. The said decision cannot be said to have any application in the instant case. Herein although ACRs for three years had been recorded but all of them were not adverse. The petitioners made a representation against the adverse remark which had been considered by the Full Court, His case must have been deliberated for a long time as even before the impugned order of compulsory retirement was passed, the judicial work had been withdrawn. The matter thereafter had been placed before a Screening Committee and as indicated hereinbefore not only reports of the Screening Committee but also his representation had been considered in the instant case.

24. Late Shri Jharwal had never been promoted. In State of Haryana (supra), the Apex Court has merely stated that the object of the making and communication of adverse remarks is to give to the Officer concerned an opportunity to improve his performances, conduct or character, as the case may be.

25. In the instant case, as indicated hereinbefore, even on various prior occasions such an opportunity had been given to the petitioner In Ishwar Chand Jain (supra) the Apex Court was dealing with a case where the remark given by the Inspecting Judge was reduced by the Full Court. A departmental proceeding had been initiated against him. He retired while he was placed under suspension, keeping the disciplinary proceedings pending, for the purpose of retirement benefits. In that situation it was observed :

"30. .......The conclusion is obvious that the action of the High Court in retiring Jain was based on the allegation of misconduct, which was the subject-matter of the enquiry before a Judge of the High Court and which appears to us to be the basis for recording of adverse remarks by the High Court in ACR of. the Officer for the year 1991-92. There is substance in the argument of Mr. M.N. Krishnamani, learned counsel for Jain that the High Court found a short cut to remove Jain from service when the order of retirement was based on the charges of misconduct, the subject-matter of the enquiry. We agree with Mr. Krishnamani that the impugned order of compulsorily retiring Jain though innocuously worded is in fact an order of his removal from service and cannot be sustained. The High Court on its judicial side was correct in setting aside the order compulsorily retiring Jain and allowing the writ petition of Jain to the extent mentioned in the impugned judgment. In this view of the matter it is not necessary for us to consider other submissions made before us if Jain could at all have been compulsorily retired under Rule 3.26 of the Punjab Civil Services Rules, Vol. I, Part I, he being a Member of the Superior Judicial Service." We may however notice that the Apex Court held :

"31:... In the case where the Full Court of the High Court recommends compulsory retirement of an officer, the High Court on the judicial side has to exercise great circumspection in setting aside that order. Here it is a complement of all the Judges of the High Court, who go into the question. It may not be possible that in all cases evidence would be forthcoming about the doubtful integrity of a judicial officer and at times the Full Court has to act on the collective wisdom of all the Judges."

26. The Court on that basis thereafter emphasized the need for proper inspection of a judicial officer. In Sarnam Singh's case (supra) the High Court found that there was nothing adverse against the judicial officer in his entire service record except in the latest confidential report written by the Inspecting Judge which was also found to be unjustified, arbitrary and based on non-existent facts It was in that situation the judgment of the High Court that the order of compulsory retirement be set aside was upheld by the Apex Court. The Apex Court noticed that for the purpose of recording adverse remark in the ACR opportunity of hearing was not necessary to be given stating :

"These are extremely important observations and constitute important guidelines for assessing the work of a judicial officer. These observations also indicate the attitude with which the Inspecting Judge should objectively consider the work and conduct of the Judicial Officers who sometimes have to work under difficult and trying circumstances. The same views were earlier expressed in State Bank of India v. Kashinath Kher, (See also : Union of India v. N.R. Banerjee,, State of U.P. v. Yamuna Shanker Misra, as also Swatantar Singh v. State of Haryana, on the question as to what precisely is the object and purpose of writing annual confidential report).

27. In most of the cases afore-mentioned the fact of the matter would reveal that the concerned officer was found to be a person of doubtful integrity. In the instant case it was not found that late Shri Jharwal was a man of doubtful integrity. His case had objectively been considered by the Full Court having regard to the materials on record.

28. We may notice that although the adverse remark "C" i.e. below average was not required to be communicated while considering the case for compulsory retirement as has been held by the Apex Court in Baikuntha Nath Das (supra) whereupon strong reliance has been placed by the learned Counsel.

29. In Padam Singh's case (supra) Devinder Gupta, J. speaking for the Division Bench observed :

"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."

30. Such a situation does not arise in this case at all. However, we may notice that in M.E. Reddy's case (supra), the Apex Court observed :

"18. In this case the Court followed and endorsed the decision of this Court in the case of J.N. Sinha (supra). Here we might mention that the appellants were fair and candid enough to place the entire confidential personal file of Reddy before us starting from the date he joined the Police Service and after perusing the same we are unable to agree with Mr. Krishnamurty Iyer that the officer had a spotless career. The assessment made by his superior officers from the very beginning of his service until the impugned order was passed show that at the best Reddy was merely an average officer and that the reports show that he was found to be sometimes tactless, impolite, impresonated, suffered from other infirmities though not all of them were of a very serious nature so as to amount to an adverse entry which may be communicated to him. We might also mention that before passing an order under Rule 16(3) it is not an entry here or an entry there which has to be taken into consideration by the Government but the overall picture of the officer during the long years of his service that he puts in has to be considered from the point of view of achieving high standard of efficiency and dedication so as to be retained even after the officer has put in the requisite number of years of service. Even in the last entry which was sought to be expunged through a representation made by Reddy and other entries made before that it appears that the integrity of Reddy was not above board."

31. In the High Court of Judicature at Bombay (supra) the Apex Court held:

"22. It is the Full Court of all Judges of the High Court of Bombay which has authorized 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 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 judicial probity. Any instance of a High Court condoning or compromising 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 judiciary floats only over the confidence of the people in its probity. Such confidence is the foundation on which pillars of the judiciary are built.

23. The Judges, at whatever level 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 and scales of justice its rippling effect would be disastrous and deleterious". Dishonest judicial personage is an oxymoron. We wish to quote the following observations made by Ramaswamy, J. in High Court of Judicature at Bombay v. Shirish kumar Rangrao Patil : "The lymph nodes (cancerous cells) of corruption constantly keep creeping into the vital veins of the judiciary and the need to stem it out by judicial surgery lies on the judiciary itself by its self-imposed or corrective measures of disciplinary action under the doctrine of control enshrined in Articles 235, 124 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".

24. When such a constitutional function was exercised by the administrative side of the High Court and 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 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."

In Bihari Lal's case (supra) it was observed :

"4.......It is now settled law that the entire service record should be considered before taking a decision to compulsorily retire a Government servant exercising the power under Rule 56(j) of the Fundamental Rules. It is not necessary that adverse remarks should be communicated or every remark, which may sometimes be categorized as adverse, be communicated. It is on an overall assessment of the record, the authority would reach a decision whether the Government servant should be compulsorily retired in public interest. In an appropriate case, there may not be tangible material but the reputation of officer built around him could be such that his further continuance would imperil the efficiency of the public service and would breed indiscipline among other public servants. Therefore, the Government could legitimately exercise their power to compulsorily retire a Government servant. The Court has to see whether before the exercise of the power, the authority has taken into consideration the overall record even including some of the adverse remarks, though for technical reasons might be expunged on appeal or revision. What is needed to be looked into is the bona fide decision taken in the public interest to augment efficiency in the public service. In the absence of any mala fide exercise of power or arbitrary exercise of power, a possible different conclusion would not be a ground for interference by the Court/Tribunal in exercise of its judicial review."

32. In Posts and Telegraphs Board (supra) the Apex Court observed :

"5.......As has already been pointed out, an order of compulsory retirement is not an order of punishment. Fundamental Rule 56(j) authorizes the Government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service if, in its opinion, public interest calls for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the Government to decide upon. The courts will not interfere with The exercise of this power, if arrived at bona fide and on the basis of material available on the record. No mala fides have been urged in the present case. The only suggestion of the High Court is that the record discloses no material which would justify the action taken against the respondent. We are unable to agree. In our opinion, there was material which showed that the efficiency of the petitioner was slackening in the last two years of the period under review and it is, therefore, not possible for us to fault the conclusion of the department as being mala fide, perverse arbitrary or unreasonable."

33. In State of Uttar Pradesh v. Chandra Mohan Nigam and Ors., it was held :

"1. As stated earlier, even in the case of compulsory retirement under Rule 16(3), an order may be challenged in a court if it is arbitrary or mala fide. If, however, the Government reaches a decision to prematurely retire a Government servant, bona fide, the order, per se, cannot be characterized as by way of punishment since it does not cast any stigma on the employee nor does the employee forfeit any benefit which he has already earned by his service, nor does it result in any civil consequences."

34. In Union of India and Ors. v. Nasirmiya Ahmadmiya Chauhan, the Apex Court observed :

"3.....This Court has authoritatively laid down in various judgments that the power under Fundamental Rule 56(j) can be exercised by the appropriate authority at any time in public interest after the Government servant has attained the relevant age or has completed the period of service as provided under the Fundamental Rules. The appropriate authority has to form the opinion that it is in the public interest to retire a person under Fundamental Rule 56(j) on the basis of the service record of the person concerned. There is no other bar for the exercise of the power under the said Fundamental Rule by the prescribed authority. Government instructions relied upon by the Tribunal are only the guidelines laid down by the Central Government for its functioning. A, Government servant cannot be heard to say that though the order of retirement is justified on the basis of his service record but since there is violation of some Government instructions the order is liable to be quashed. The Tribunal was wholly injustified in holding that prejudice was caused to the respondent in the sence that he could legitimately believe that under the instructions his case would not be reviewed after the lapse of certain period. The action under Fundamental Rule 56(j) against a Government servant is dependent on his service record earned by him till he reaches the age or completes the service provided under the said rule. If the record is adverse then he cannot take shelter behind the executive instructions and must be "hopped off" as and when he catches the eye of the prescribed authority."

35. With a view to consider as to whether there had been materials on the service records of the concerned judicial officer so as to enable the High Court to make recommendations for its compulsory retirement in terms of F.R.S.R.-56J, it is necessary to consider his records, which read as follows :

"HIGH COURT OF DELHI AT NEW DELHI

confidential remarks by the Hon'ble Inspecting Judge on the work of Shri P.D. Jharwal, DJS for the year 1989.

1. Knowledge of law and procedure

-

poor

2. Is he industrious and prompt in the disposal of cases and has he coped ef­fectually with heavy work?

3. Are his judgments and orders well written and clearly expressed ?

-

Poor scope for improvement

4. (for District & Sessions Judges and Senior Subordinate Judges). In his supervision and the Distribution of business Among, and his control over The Subordinate Courts good?

5. Is he an efficient Judicial Officer ?

6. Has he maintained Judicial reputation for honesty and impartiality ?

-

4 complaints received. Each Or­dered to be filed.

7. Net result.

JUDGE

Dated : 28.08.1992

B

I did not inspect the Court. Previous rating be maintained. However that Officer need to be talked to and watched if Necessary.

**************** Confidential report of The Civil Judicial work of Officers of Delhi Judicial service for the year 1991 .

Name of the Officer reported on

-Shri P.D. Jharwal.

Appointment held

-

Metropolitan Magistrate.

Total length of service in the DJS,

-1.5.75

Name of reporting Officer

-Shri P.K. Jain

sd/-

District & Sessions Judge, Delhi

(27.8.92)

Heads under which information is required.

Remarks by the District and Sessions Judge

Remarks by The High Court Recorded in its F.C. Meeting dated 29.8.92

1) Knowledge of Law and Procedure.

Average

C (Below average) Sd/-Registrar, High Court of Delhi, New Delhi.

2) Is he industrious Satisfactory prompt in the disposal of cases ?

3) Is this supervision of the distribution of business among and his control over the Subordinate Courts good

N.A.

4) Is he an efficient Satisfactory Subordinate Judge ?

5) Has maintained a reputation for honesty and impartiality during the period under report ? (Give reasons for your answer if it is negative or doubtful).

No complaint

Is he fit for the exercise of any enchanced powers? If so which?

May be considered

Is he fit to cross the efficiency bar ? (This question need only be answered when it is expected to arise during the year following the report).

N.A

Defect it any.

Not to my knowledge

General Remarks: Satisfactory Sd/-

(27.8.92) ****************** HIGH COURT OF DELHI : AT NEW DELHI

Confidential remarks by the Hon'ble Inspecting Judge on the work of Shri P.D. Jharwal, D.J.S. for the year 1991.

1.

Knowledge of law and procedure

Poor

2.

Is he industrious and prompt in the disposal of cases and has he coped effectually with heavy work ?

There is scope for improvement.

3.

Are his judgments and orders well written and clearly expressed ?

Poor.

There is no proper discussion of evidence and provisions of law.

4.

(For District and Sessions Judges and Senior Subordinate Judges). Is his supervision and the distribution of business among, and his control over the Subordinate Courts good ?

NA

5.

Is he an efficient Judicial Officer ?

Average

6.

Has he maintained Judicial reputation for honesty and impartiality?

Does not enjoy a good reputation for integrity.

7.

Net result.

Separate typed note be seen also.

'C'      Sd/-
Dated : 20.8.92     JUDGE
  
   ***************

 

Annual Confidential Remarks recorded by the Full court on the work and conduct of Mr. P.O. Jharwal, and Officer of the Delhi Judicial Service in its meeting held on 22.5.1993.

     Year 1992
 Mr. P.O. Jharwal, an Officer of Delhi                C
Judicial Service.                                   (incompetent and integrity doubtful)"
 
 

36. The aforementioned service records of late Sh. P.O. Jharwal had been placed before a Screening Committee comprising of two Hon'ble Judges of this Court, which made the following remarks :

"A perusal of his record shows that in initial years he earned good reports but for the year 1979-80 he was adjudged as average officer. In the inspection carried out by an Hon'ble Judge of this Court on March 11, 1982, it was recorded that the officer was not functioning properly inasmuch as there were number of complaints received from the ex-President of the Bar and the Secretary of the Bar Association. Even on the date of inspection it was found that he had not recorded evidence in any of the cases fixed for evidence and had adjourned those cases and was sitting idle in his chamber at 4 P.M. he was given 'C' report (below average for the year 1980-81). The District & Sessions Judge in his report for the year 1983-84 recorded that the officer was not maintaining reputation for his honesty. The Inspecting Judge in his inspection note dated August 3, 1987, recorded that there was scope for lot of improvement. Again this remark was repeated by another Inspecting Judge in his inspection note given on September 6, 1988 and also in inspection note dated August 28, 1989. In inspection note date August 28, 1992, the Inspecting Judge recorded that the officer's knowledge of law and procedure was poor and there was lot of scope for improvement in judgments and orders which were poor and four complaints were received against this officer which were, however, filed.

In another inspection note dated August 25, 1992, of an Hon'ble Judge, it was recorded that the judgments recorded by him are scanty and too short and evidence was not being discussed in detail. In inspection note dated August 20, 1992, for the year 1991, the Inspecting Judge recorded his knowledge of law and procedure as poor and also remarked that there was lot of scope for improvement as far as disposal of cases is concerned. His judgments Were termed as poor as there was no proper discussion of evidence and provisions of law and it was recorded that he did not enjoy good reputation for integrity and vide detailed separate note the deficiencies, which were glaring in the work of the officer, were highlighted. The Full Court had recorded his work at 'C' (below average) for the year 1991.

Keeping in view of this poor record of the officer, we recommend that he may be retired in public interest after giving him three months notice."

37. Can it in the afore-mentioned situation be said that the opinion formed by the High Court was absolutely perverse in nature ? The answer to the said question must be rendered in negative.

38. Furthermore in this case the judicial officer has died in the year 1997. He cannot be reinstated in service. He was entitled to full retiral benefit and is also entitled to family pension. All his retirement benefits must have been paid and if not the same is hereby directed to be paid within two months from the date of communication of this order.

39. In the peculiar facts and circumstances of this case we are of the opinion that this is not a fit case where this Court should exercise its jurisdiction under Article 226 of the Constitution of India.

Writ petition is dismissed.