Gujarat High Court
K M Bhut vs High Court Of Gujarat on 25 July, 2025
Author: A. S. Supehia
Bench: A.S. Supehia
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Reserved On : 09/07/2025
Pronounced On : 25/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10772 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR.JUSTICE R. T. VACHHANI Sd/-
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Approved for Reporting Yes No
✔
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K M BHUT
Versus
HIGH COURT OF GUJARAT & ANR.
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Appearance:
MR BJ TRIVEDI(921) for the Petitioner(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Petitioner(s) No. 1
LAW OFFICER BRANCH(420) for the Respondent(s) No. 1
MR SHALIN MEHTA, SENIOR ADVOCATE WITH
MR HAMESH C NAIDU(5335) for the Respondent(s) No. 1
MR AAKASH GUPTA, AGP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present writ petition has been filed
assailing Notification dated 19.05.2009
compulsory retiring the petitioner from service
at the age of 58 years and 6 months (considering
his Date of Birth i.e. 22.11.1950).
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2. The petitioner serving as a District Judge
from 04.11.2004 until 20.05.2009, when he came to
be retired compulsory vide Notification dated
19.05.2009. Being aggrieved, the petitioner has
filed the present writ petition.
SUBMISSIONS ON BEHALF OF THE PETITIONER
3. Learned advocate Mr.Trivedi appearing for the
petitioner at the outset, has submitted that the
petitioner could not have been retired compulsory
after he was promoted w.e.f. 01.05.2003 as a
District Judge. It is submitted that no
complaints have been entertained against the
petitioner and all the complaints, being 14 in
number, were filed and hence, there was no
material available with the respondents to
compulsory retire the petitioner from service. He
has further submitted that in fact the
Confidential Reports (CRs) of the petitioner from
March, 1994 till he was made to retire was "very
good" and the CRs, on the contrary, reveals that
he was an excellent Judicial Officer.
4. It is further submitted by learned advocate
Mr.Trivedi that the petitioner was never
intimated about anything adverse with regard to
his work or conduct and his entire career was
spotless and unblemished. He has referred that
during 10 years of total working days, which were
1573 days and out of that, for 853 days, the
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petitioner had conducted the matters of civil
side and for 720 days, he had dealt with the
criminal work. It is submitted that in both
sides, criminal as well as civil, average of the
petitioner comes to 666% per year. Further, it is
submitted that while the petitioner was
functioning at Mehsana from 01.03.2007 to
28.03.2008, he has disposed of the matters of
Motor Accident Claims and when the evening Court
was functioning from 06:15 to 08:15 P.M. during a
period of one year, he has disposed of many old
matters.
5. Learned advocate Mr.Trivedi has submitted
that the petitioner has only to be ordered to be
compulsory retired from service in view of the
communication dated 29.12.2008 written by the
petitioner to the High Court requesting to
transfer him looking to his age and he was not
keeping well. It is submitted that in fact the
request for transfer could have been rejected
instead of compulsory retiring him from service.
He has further submitted that the petitioner has
been retired under the guise of public interest
without following Rule 21(2) of the Gujarat State
Judicial Service Rules, 2005 (for short "the
Judicial Rules"), which mentions that the
Judicial Officer can be compulsory retired, after
he has been considered at least three times, when
he is about to attain the age of 50 years, 55
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years and 58 years. It is submitted that at the
age of 50 years, the petitioner was promoted in
the cadre of Joint District Judge and hence, it
can be presumed that there was nothing adverse
against him.
6. Similarly, it is submitted by learned
advocate Mr.Trivedi that he was posted at
Surendranagar in 2004 and at that time, when he
was 54 years of age i.e. nearly 55 years, he may
have been considered for compulsory retirement
for the second time. Thereafter, it is submitted
that he was never communicated any adverse
remarks and when he was about to attain the age
of 58 years, a competent authority ought to have
considered his case for compulsory retirement for
the third time but after he has attained the age
of 58 years, action of compulsory retirement is
belatedly taken and without issuing any notice or
prior intimation, he has been suddenly retired
compulsorily. Thus, it is submitted that
assessment of his work could have been done
before attaining the age of 58 years or when he
attained the age of 50 or 55 years.
7. It is further submitted by learned advocate
Mr.Trivedi that after the petitioner completed
the age of 58 years, he is entitled to continue
till the enhanced superannuation age of 60 years.
It is submitted that it is true that compulsory
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retirement cannot be equated with punishment but
simultaneously, the compulsory retirement of the
petitioner, without assigning any reason and in
absence of any material, which could show that
the petitioner has turned as a deadwood, it was
not necessary for the respondents to retire him
compulsory.
8. While inviting attention of this Court to the
Notification dated 19.05.2009 issued by the State
Government compulsory retiring the petitioner
from service, it is submitted by learned advocate
Mr.Trivedi that the same is passed by the
Governor of Gujarat and not by His Excellency
Governor as per Rule 21 of the Judicial Rules. He
has submitted that despite the application filed
under the Right to Information Act, 2005 (for
short "the RTI Act") to supply the material used
against the petitioner for compulsory retiring
him, the same was not supplied. Thus, it is
submitted that the petitioner ought not to have
retired at the verge of his retirement on
reaching the age of 60 years.
9. In support of his submissions, learned
advocate Mr.Trivedi has placed reliance on the
catena of the decisions of the Apex Court in the
cases of - (1) Ishwar Chand Jain vs. High Court
of Punjab and Haryana, (1988) 3 S.C.C. 370, (2)
Bishwanath Prasad Singh vs. State of Bihar,
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(2001) 2 S.C.C. 305, (3) Swaran Singh Chand vs.
Punjab State Electricity Board, (2009) 3 S.C.C.
758, (4)Nawal Singh vs. State of Uttar Pradesh,
(2003) 8 S.C.C. 117, (5) Dev Dutt vs. Union of
India and Ors., (2008) 8 S.C.C. 725, and (6)
Baikuntha Nath Das vs. Chief District Medical
Officer, Baripada, (1992) 2 S.C.C. 299.
SUBMISSIONS ON BEHALF OF RESPONDENT NO.1-HIGH
COURT
10. In response to the aforesaid submissions,
learned Senior Advocate Mr.Mehta has submitted
that pursuant to the letter addressed by the
Hon'ble the Chief Justice of India dated
14.10.2008 to all the High Courts of the country
to evaluate the potential of Judicial Officers on
attaining the age of 50/55/56/57/58 and 59 years
on the basis of the past record of service,
character rolls, quality of judgements and other
relevant materials so as to weed out, those
persons i.e. the Judicial Officers, who are found
to be indolent, infirm or with doubtful
integrity, reputation and utility. A Specially
Constituted Committee undertook necessary
exercise in case of all the Judicial Officers,
who had completed 50 or 55 years of age. It is
submitted that on 06.05.2009, the Committee had
submitted its report in case of 04 Judicial
Officers, including the petitioner. It is
submitted that the Specially Constituted
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Committee, comprising of 03 Hon'ble Judges of
this Court, considered the entire material,
including a representation made by the petitioner
to the High Court on 29.12.2008 informing that
since he was keeping ill-health and some physical
problems, which causes inconvenience to him by
looking to his age, he may be transferred. It is
submitted that the Specially Constituted
Committee on 06.05.2009 had also, after
considering the service record of the petitioner,
including vigilance complaint, formed an opinion
that integrity of the petitioner is also reported
to be doubtful. It is submitted that the
Specially Constituted Committee also opined that
on overall assessment of the performance of the
petitioner and on evaluation of his potential for
useful service in future, it would be in public
interest to retire him from service, in exercise
of the powers conferred under Rule 21 of the
Judicial Rules.
11. Learned Senior Advocate Mr.Mehta has further
submitted that thereafter, the said decision of
the Specially Constituted Committee was placed
before the Standing Committee of the High Court
and on 12.05.2009, the Standing Committee
accepted the report of the Specially Constituted
Committee. Further, the said report was placed
before the Full Court Meeting and the Full Court
accepted the decision on 14.05.2009. It is
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submitted that upon recommendation of the High
Court, Notification dated 19.05.2009 was issued
by the State Government, accepting the
recommendation and compulsory retired the
petitioner from service.
12. It is submitted by learned Senior Advocate
vigilance complaints and 08 administrative
complaints against the petitioner and out of
these vigilance complaints, 13 complaints were
ordered to be filed, whereas in one Vigilance
Complaint No.291 of 2008, preliminary inquiry was
ordered to be held on 12.08.2008. While placing
reliance on Rule 21 of the Judicial Rules, it is
submitted that compulsory retirement of the
petitioner in public interest is neither
stigmatic nor it has any effect on re-employment
and hence, as per the settled legal precedent,
before passing the order of compulsory
retirement, there is no requirement of observing
principles of natural justice.
13. So far as the contentions raised by the
petitioner of order having been passed by the
Government instead of His Excellency Governor of
Gujarat is concerned, learned Senior Advocate
Mr.Mehta, has submitted that the Notification is
always passed by the State Government on the
recommendation of the High Court, and there is no
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violation of the Rules. It is submitted that
ultimately, Notification dated 19.05.2009 is
issued by the State Government, accepting the
recommendation of the High Court, for compulsory
retiring the petitioner.
14. Learned Senior Advocate Mr.Mehta, in support
of his submissions, has also placed reliance on
the decisions of the Apex Court in the cases of
(i) Swaran Singh Chand (supra); (ii) Nawal Singh
(supra); and (iii) Baikuntha Nath Das (supra).
15. Learned Senior Advocate Mr.Mehta has further
submitted that it is a settled legal precedent
that a single adverse remark, which is also
uncommunicated, can be considered for the purpose
of compulsory retiring an employee, and the
promotion will have no bearing on the action of
compulsory retiring a Judicial Officer. It is
submitted that in cases of the Judicial Officers,
who have doubtful integrity, no positive evidence
can be found against them. He has submitted that
it is not the case of the petitioner that he was
never communicated any adverse remarks during his
service tenure. It is submitted that even a
scintilla of evidence is enough to retire a
Judicial Officer compulsorily. Finally, it is
submitted that the petitioner has not challenged
the process adopted by the High Court, wherein
scrutiny of the entire service record has been
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undertaken by the Constitutional authorities.
Thus, it is urged that the present writ petition
may not be entertained.
16. While adopting the submissions advanced by
learned Senior Advocate Mr.Mehta, the learned AGP
has urged that the present writ petition may be
rejected.
17. We have heard the learned advocates for the
respective parties and also perused the documents
as pointed out by them.
ANALYSIS
18. The exercise of evaluation of the potential
of the Judicial Officers in the entire country
before attaining the age of 50 years or 55 years
were undertaken in view of the communication
dated 14.10.2008 written by the Hon'ble the Chief
Justice of India to all the High Courts. It was
expressed therein that the Service Rules can
suitably be amended to provide for the
assessments of such officers on attaining the age
of 50 or 55 years in addition to 58 years, in
light of the decision of the Apex Court in the
case of All India Judges Association and Ors. Vs.
Union of India and Ors., (2002) 4 S.C.C. 247, in
order to weed out those Judicial Officers, who
are found to be indolent, infirm or with doubtful
integrity. Accordingly, the Hon'ble the Chief
Justice of High Court undertook necessary
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exercise of evaluation of all the Judicial
years, 55 years and 58 years of age, as required
under Rule 21 of the Judicial Rules. The
provisions of Rule 21 of the Judicial Rules are
incorporated as under:
"21.(1) Notwithstanding anything contained in these Rules
the Governor shall, on the recommendation of the High
Court, if he is of the opinion that it is in the public
interest so to do, have the absolute right to retire any
member of the service ho had attained the age of 50 years,
by giving him notice of not less than three months in
writing or three months pay and allowances in lieu of such
notice.
(2) Whether a member of the service should be retired in
public interest under sub-rule (1) shall be considered at
least three times, that is, when he is about to attain the
age of 50 years, 55 years and 58 years.
Provided that nothing in sub-rule (2) shall be construed
as preventing consideration of a member of the service at
any time other than those mentioned therein."
19. Accordingly, the Committee of 03 Judges of
this Court was constituted to scrutinize the
performance and evaluation of the Judicial
Officers, which included the petitioner. The
Committee, on 06.05.2009 in case of the
petitioner, who had completed 58 years of age on
22.11.2008, prepared a report. The same is as
under:
"Mr K.MBhut, Principal District Judhe, Narmada at Rajpipla
has completed 58 yeats of age on 22.11.2008.
"This Officer had earned good gradings and had shown good
disposals till his transfer to Rajpipla. After his
transfer to Rajpipla, in his representation dated
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29.12.2008, this Judicial Officer has requested for
transfer and state as under :-
"Looking to may age, now I am not keeping well myself.
I have got some physical problems which cause
inconvenience to me. .. ... ..."
We have carefully considered the service record of Mr KM
Bhut including the vigilance complaints. The integrity of
this officer is also reported to be doubtful.
On an overall assessment of the performance of this
officer and on evaluation of his potential for useful
service in future, the Committee is of the view that it
would be in public interest to retire Mr. KM Bhut from
service in exercise of the powers conferred by Rule 21 of
the Gujarat State Judicial Services Rules, 2005."
20. A Perusal of the report would reveal that the
Committee had undertaken necessary exercise of
scrutinizing the service records of the
petitioner. The Committee has also opined in
favour of the petitioner to the extent that he
was an Officer, who had earned good grading and
had shown good disposal till his transfer to
Rajpipla however, thereafter he made a
representation on 29.12.2008 requesting for
transfer as he was having some physical problems,
which caused inconvenience and he was not keeping
well. The Committee has also scrutinized the
service record and also vigilance complaint and
opined that integrity of the petitioner was also
reported to be doubtful. Accordingly, it was
opined that he should be retired under the
provisions of Rule 21 of the Judicial Rules. The
said recommendation of the Committee was placed
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before the Standing Committee of the High Court,
which accepted the report on 12.05.2009 and
report of the Standing Committee was further
placed before the Full Court and the decision was
accepted on 14.05.2009. Thus, after scrutiny of
the entire service record of the petitioner by
the High Court in 03 stages, it was concluded
that he should be retired in public interest. The
process, which has been adopted by the High
Court, has not been challenged or questioned by
the petitioner.
21. It is also adroitly settled by various
decisions of the Apex Court and High Courts that
the order of compulsory retiring an Officer or
Government Servant in public interest is neither
stigmatic nor it has any effect on re-employment
of such persons.
22. Learned advocates appearing for the
respective parties have placed reliance on
various case laws dealing with the said subject.
The judgements are repetitive and hence, in order
to avoid prolixity, we are not inclined to refer
to all the judgements however, in order to deal
with the issue, we are relying upon the following
observations of the Apex Court made in different
cases.
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(i) Ishwar chand Jain (supra)
The Apex Court has dismissed the order of
compulsory retiring the Judicial Officer, who was
on probation, on the basis of 04 complaints.
Unquestionably, the said judgement will not apply
to the present issue of retiring a public servant
in public interest as it is not a punishment.
(ii) Bishwanath Prasad Singh (supra)
The Apex Court was dealing with the decision
of the compulsory retirement of an Officer of 58
years of age on complaint. The Full Bench
decision of the Apex Court, after considering the
array of judgements, has held that in absence of
any allegation of bias and mala fides against the
High Court, opinion formed by the High Court
cannot be interfered with. The judgement is
primarily on the issue of timely preparation and
recording the entries in the CR, in order to see
that the Judicial Officers can improve their
performance. The Apex Court has also held that
compulsory retirement of an Officer or Government
servant does not cause any stigma as the
Government servant is entitled to pension
actually earned and other retiral benefits.
It is also held that so long as the opinion
formed on the basis of the order of compulsory
retirement in public interest is found bona fide,
the opinion cannot be ordinarily interfered with
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by a judicial forum and the said order may be
subject to judicial review on very limited
grounds such as the order being mala fide, based
on no material or on collateral grounds or having
been passed by the authority not competent to do
so. It is further observed that the object of
compulsory retirement in public interest is not
to punish or penalize the Government servant but
to weed out the worthless, who have lost their
utility for the administration by their
insensitive, unintelligent or dubious conduct
impeding the flow of administration or promoting
stagnation.
(iii)Swaran Singh Chand (supra)
The Apex Court has held that the principles
of natural justice are not required to be
complied with and even adverse entries in the CR,
including non-communicated entries may be taken
into consideration, while compulsory retiring the
Judicial Officers in public interest. The
relevant paragraphs are as under:
"16. The learned counsel appearing on behalf of the
respondent would contend that the principles of natural
justice are not required to be complied with in a case of
compulsory retirement, particularly, when no mala fide is
alleged. Allegation against the delinquent was not only
that he lacked integrity but also unfit to be retained in
service. Those comments, in our opinion, are stigmatic in
nature.
It is also not a case where there had been a steady
decline in the performance of the employee.
17. *** *** ***
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18. *** *** ***
19. Thus, when an order suffers from malice in law,
neither any averment as such is required to be made nor
strict proof thereof is insisted upon. Such an order being
illegal would be wholly unsustainable."
(iv) Nawal Singh (supra)
The Apex Court, while examining the scope and
power of retiring the Judicial Officer by way of
compulsory retirement, has recorded thus:
"2. At the outset, it is to be reiterated that the
judicial service is not a service in the sense of an
employment. Judges are discharging their functions while
exercising the sovereign judicial power of the State.
Their honesty and integrity is expected to be beyond
doubt. It should be reflected in their overall reputation.
Further nature of judicial service is such that it cannot
afford to suffer continuance in service of persons of
doubtful integrity or who have lost their utility. If such
evaluation is done by the Committee of the High Court
Judges and is affirmed in the writ petition, except in
very exceptional circumstances, this Court would not
interfere with the same, particularly because order of
compulsory retirement is based on the subjective
satisfaction of the Authority.
6. Case of Bharthari Prasad is also of the same nature.
His confidential reports reveal that various allegations
were made and various inquiries were held against him. In
confidential report for the year 1975-76, the District
Judge observed disposal of cases to be poor and judgment
of average quality. For the years 1978-79 and 1980-81, the
disposal was observed to be below standard. Once he was
charged for the omission while delivering the judgment of
conviction in the absence of the accused and also
discharging the bail bonds and sureties, which was in
violation of Section 353 Cr.P.C. For this, he was asked to
be careful in future. For the year 1994-95, District Judge
remarked his integrity to be doubtful and overall
assessment as poor. Representation of the appellant
against these remarks was also rejected. For the year
1997-98, the District Judge awarded adverse remarks
against him. The District Judge also requested for his
transfer from Allahabad to another station. The appellant
was later on transferred from Allahabad. It is also stated
that the appellant did not comply the orders of transfer
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but even after receiving the orders of transfer, he
continued to decide cases. The matter was later on
considered by the Administrative Committee."
The Apex Court has considered the judgement
of Full Bench in the case of Baikuntha Nath Das
(supra) and held as under:
"The following principles emerge from the above
discussion:
(i) An order of compulsory retirement is not a punishment.
It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on
forming the opinion that it is in the public interest to
retire a government servant compulsorily. The order is
passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the
context of an order of compulsory retirement. This does
not mean that judicial scrutiny is excluded altogether.
While the High Court or this Court would not examine the
matter as an appellate court, they may interfere if they
are satisfied that the order is passed (a) mala fide or
(b) that it is based on no evidence or (c) that it is
arbitrary - in the sense that no reasonable person would
form the requisite opinion on the given material; in
short, if it is found to be perverse order.
(iv) The government (or the Review Committee, as the case
may be) shall have to consider the entire record of
service before taking a decision in the matter - of course
attaching more importance to record of and performance
during the later years. The record to be so considered
would naturally include the entries in the confidential
records/character rolls, both favourable and adverse. If a
government servant is promoted to a higher post
notwithstanding the adverse remarks, such remarks lose
their sting, more so, if the promotion is based upon merit
(selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be
quashed by a Court merely on the showing that while
passing it uncommunicated adverse remarks were also taken
into consideration. That circumstance by itself cannot be
a basis for interfere. Interference is permissible only on
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the grounds mentioned in (iii) above. This aspect has been
discussed in paras 29 to 31 above.
4. Appellant Nawal Singh was appointed in 1972. In
Confidential Reports for the year 1975-76, 1976-77, it has
been mentioned that his judicial work needs improvement.
For the year 1980-81, his judicial work was of average
quality. For the year 1984-85, the District Judge has
rated him as good officer. For the year 1986-87, there
were complaints about his integrity. For this purpose,
reference was made to cases wherein he had granted bail in
serious offences. However, with regard to doubtful
integrity, the representation of the appellant was
accepted and it was substituted by holding that no reason
to doubt the integrity of the officer. Again, for the year
1990-91, it has been stated that with regard to the
interim orders/injunctions, he was directed to be more
scrupulous; it was stated that integrity was doubtful and
over all assessment was poor. On his revision, adverse
remarks with regard to his integrity were expunged by
holding that the appellant was suspended during the
relevant year pending the departmental enquiry touching
his integrity but he was exonerated by the Administrative
Committee. Again, there are instances indicating that
various inquiries were held subsequently. It is not
necessary to refer to the same. His application for
revoking the suspension was also rejected. However, later
on, order of suspension was revoked.
5. *** *** ***
6. *** *** ***
7. Hence, it is apparent that the Screening Committee
after examining the past records of service; character
roll and other matters relating to the appellants opined
that they were not suitable for continuing in service
beyond the age of 58 years.
8. From the facts narrated above, even if we were to sit
in appeal against the subjective satisfaction of the High
Court, it cannot be said that the orders of compulsory
retirement of the appellants are, in any way, erroneous or
unjustified. Further, it is impossible to prove by
positive evidence the basis for doubting integrity of the
judicial officer. In the present day system, reliance is
required to be placed on the opinion of the higher officer
who had the opportunity to watch the performance of the
concerned officer from close quarters and formation of his
opinion with regard to overall reputation enjoyed by the
concerned officer would be the basis.
9. It is to be reiterated that for keeping the stream of
justice unpolluted, repeated scrutiny of service records
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of judicial officers after specified age/completion of
specified years of service provided under the Rules is
must by each and every High Court as the lower judiciary
is the foundation of judicial system. We hope that the
High Courts would take appropriate steps regularly for
weeding out the dead-wood or the persons polluting justice
delivery system."
(v) R.C.Chandel vs. High Court of M P & Anr.,
(2012) 8 S.C.C. 58.
In the cases, where the District Judge was
granted selection grade and super time scale, it
was held that the same do not wipe out the adverse
entries which have remained on record and continued
to hold the field, it was held thus:
"34. It is true that the appellant was confirmed as
District Judge in 1985; he got lower selection grade with
effect from 24.03.1989; he was awarded super time scale in
May, 1999 and he was also given above super time scale in
2002 but the confirmation as District Judge and grant of
selection grade and super time scale do not wipe out the
earlier adverse entries which have remained on record and
continued to hold the field. The criterion for promotion
or grant of increment or higher scale is different from an
exercise which is undertaken by the High Court to assess a
judicial officer's continued utility to the judicial
system. In assessing potential for continued useful
service of a judicial officer in the system, the High
Court is required to take into account the entire service
record.
Overall profile of a judicial officer is the guiding
factor. Those of doubtful integrity, questionable
reputation and wanting in utility are not entitled to
benefit of service after attaining the requisite length of
service or age.
35. *** *** ***
36. *** *** ***
37. Judicial service is not an ordinary government service
and the Judges are not employees as such. Judges hold the
public office; their function is one of the essential
functions of the State. In discharge of their functions
and duties, the Judges represent the State. The office
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that a Judge holds is an office of public trust. A Judge
must be a person of impeccable integrity and unimpeachable
independence. He must be honest to the core with high
moral values. When a litigant enters the courtroom, he
must feel secured that the Judge before whom his matter
has come, would deliver justice impartially and
uninfluenced by any consideration. The standard of conduct
expected of a Judge is much higher than an ordinary man.
This is no excuse that since the standards in the society
have fallen, the Judges who are drawn from the society
cannot be expected to have high standards and ethical
firmness required of a Judge. A Judge, like Caesar's wife,
must be above suspicion. The credibility of the judicial
system is dependent upon the Judges who man it. For a
democracy to thrive and rule of law to survive, justice
system and the judicial process have to be strong and
every Judge must discharge his judicial functions with
integrity, impartiality and intellectual honesty."
(vii) Rajendra Singh Verma vs. Lt.Governor of
NCT of Delhi and Anr., (2011) 10 S.C.C. 01.
The Apex Court, after considering the array
of judgements on the issue and also on the issue
of the compulsory retiring the Judicial Officer
while considering his grading of doubtful
integrity, has held thus:
"99. In view of the two three Judge Bench decisions of
this Court mentioned above the contention that adverse
remarks relating to integrity regarding which no
opportunity of making representation was provided or
pending representation was not considered and, therefore,
orders of compulsory retirement were bad in law cannot be
accepted. Therefore, the said contention is hereby
rejected.
XXX XXX XXX
119. The argument that material was not supplied on the
basis of which "`C' Doubtful Integrity" was awarded to the
appellants and, therefore, the order of compulsory
retirement is liable to be set aside has no substance.
Normally and contextually word `material' means substance,
matter, stuff, something, materiality, medium, data,
facts, information, figures, notes etc. When this Court is
examining as to whether there was any `material' before
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the High Court on the basis of which adverse remarks were
recorded in the confidential reports of the appellants,
this `material' relates to substance, matter, data,
information etc. While considering the case of a judicial
officer it is not necessary to limit the `material' only
to written complaints or `tangible' evidence pointing
finger at the integrity of the judicial officer. Such an
evidence may not be forthcoming in such cases.
120. As observed by this Court in R.L. Butail Vs. Union
of India and Others, (1970) 2 SCC 876, it is not necessary
that an opportunity of being heard before recording
adverse entry should be afforded to the officer concerned.
In the said case, the contention that an inquiry would be
necessary before an adverse entry is made was rejected as
suffering from a misapprehension that such an entry
amounts to the penalty of censure. It is explained by this
Court in the said decision that making of an adverse entry
is not equivalent to imposition of a penalty which would
necessitate an enquiry or giving of a reasonable
opportunity of being heard to the concerned Government
servant. Further in 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
caution and circumspection in setting aside that order
because it is a complement of all the judges of the High
Court who go into the question and it is possible that in
all cases evidence would not be forth coming about
doubtful integrity of a Judicial Officer.
121. As observed by this Court in High Court of Punjab &
Haryana through R.G. Vs. Ishwar Chand Jain and Another,
(1999) 4 SCC 579, at times, the Full Court has to act on
the collective wisdom of all the Judges and if the general
reputation of an employee is not good, though there may
not be any tangible material against him, he may be given
compulsory retirement in public interest and judicial
review of such order is permissible only on limited
grounds. The reputation of being corrupt would gather
thick and unchaseable clouds around the conduct of an
officer and gain notoriety much faster than the smoke.
Sometimes there may not be concrete or material evidence
to make it part of the record. It would, therefore, be
impracticable for the reporting officer or the competent
controlling officer writing the confidential report to
give specific instances of shortfalls, supported by
evidence.
122. Normally, the adverse entry reflecting on the
integrity would be based on formulations of impressions
which would be result of multiple factors simultaneously
playing in the mind. Though the perceptions may differ in
the very nature of things there is a difficulty nearing an
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impossibility in subjecting the entries in the
confidential rolls to judicial review. Sometimes, if the
general reputation of an employee is not good though there
may not be any tangible material against him, he may be
compulsorily retired in public interest. The duty
conferred on the appropriate authority to consider the
question of continuance of a judicial officer beyond a
particular age is an absolute one. If that authority bona
fide forms an opinion that the integrity of a particular
officer is doubtful, the correctness of that opinion
cannot be challenged before courts. When such a
constitutional function is exercised on the administrative
side of the High Court, any judicial review thereon should
be made only with great care and circumspection and it
must be confined strictly to the parameters set by this
Court in several reported decisions. When the appropriate
authority forms bona fide opinion that compulsory
retirement of a judicial officer is in public interest,
the writ Court under Article 226 or this Court under
Article 32 would not interfere with the order.
XXX XXX XXX
124. From the admitted facts noted earlier it is evident
that there was first a report of the Inspecting Judge to
the effect that he had received complaints against the
appellants reflecting on their integrity. It would not be
correct to presume that the Inspecting Judge had written
those remarks in a casual or whimsical manner. It has to
be legitimately presumed that the Inspecting Judge, before
making such remarks of serious nature, acted responsibly.
Thereafter, the Full Court considered the entire issue and
endorsed the view of the Inspecting Judge while recording
the ACR of the appellants. 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
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 was done
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 which a perception about
the concerned judicial officer is formed, it would be
difficult for the Court either under Article 226 or for
this Court under Article 32 to interfere with such an
exercise. Such an opinion and impression formed
consciously and rationally after the enquiries of the
nature mentioned above would definitely constitute
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material for recording adverse report in respect of an
officer. Such an impression is not readily formed but
after Court's circumspection, deliberation, etc. and thus
it is a case of preponderance of probability for
entertaining a doubt about integrity of an official which
is based on substance, matter, information etc. Therefore,
the contention that without material or basis the adverse
entries were recorded in the ACR of the appellants cannot
be upheld and is hereby rejected.
XXX XXX XXX
136. On a careful consideration of the entire material,
it must be held that the evaluation made by the Committee/
Full Court, forming their unanimous opinion, is neither so
arbitrary nor capricious nor can be said to be so
irrational, so as to shock the conscience of this Court to
warrant or justify any interference. In cases of such
assessment, evaluation and formulation of opinions, a vast
range of multiple factors play a vital and important role
and no one factor should be allowed to be blown out of
proportion either to decry or deify an issue to be
resolved or claims sought to be considered or asserted. In
the very nature of things, it would be difficult, nearing
almost an impossibility to subject such exercise
undertaken by the Full Court, to judicial review except in
an extraordinary case when the Court is convinced that
some real injustice, which ought not to have taken place,
has really happened and not merely because there could be
another possible view or someone has some grievance about
the exercise undertaken by the Committee/Full Court.
Viewed thus, and considered in the background of the
factual details and materials on record, there is
absolutely no need or justification for this Court to
interfere with the impugned proceedings. Therefore, the
three appeals fail and are dismissed. Having regard to the
facts of the case, there shall be no order as to costs."
(viii) High Court of Judicature For Rajasthan
vs. Bhanwar Lal Lamror, (2021) 8 S.C.C. 377.
In this case, the Apex Court has held as under:
"8 We have heard learned counsel for the parties. The
moot question is whether it was open to the High Court to
substitute its view for the one recorded by the Adminis-
trative Committee, which commended to the Full Court of
the High Court, pursuant to which the order of compulsory
retirement came to be issued.
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9 Indeed, the High Court on judicial side could have
done so, if it found that there was absolutely no record
or material whatsoever as referred to in the recommenda-
tions made by the Administrative Committee, or that the
Committee relied on irrelevant material, or that apposite
material was overlooked and discarded. Further, the High
Court's view would have been acceptable if it found patent
illegality, breach of procedure causing prejudice to re-
spondent no.1, or imposition of a gravely disproportionate
measure. We notice that the Administrative Committee, in
its Report, had adverted to the entire service record, in-
cluding the pending disciplinary enquiry regarding in-
tegrity of respondent no.1.
10 It is settled position in law that the competent au-
thority is supposed to consider the entire service record
of the judicial officer and even if there is a solitary
remark of lack and breach of integrity, that may be suffi-
cient for a Judicial Officer to be compulsory retired as
expounded in Tarak Singh Vs. Jyoti Basu reported in (2005)
1 SCC 201.
11 The High Court took notice of this judgment, but
still ventured to examine the entire record by itself,
overlooking the thorough examination conducted by the Ad-
ministrative Committee, which was affirmed and commended
to the Full Court. It was not open to the High Court to
substitute its own view for the satisfaction arrived at by
the Full Court of the High Court regarding the necessity
or otherwise of the respondent no.1 continuing in the Ra-
jasthan Higher Judicial Services. It was also not open to
the High Court to re-write the annual confidential reports
by taking over the role of inspecting or confirming au-
thority.
12 Suffice it to note that the disciplinary enquiry was
pending against respondent no.1 which raised questions
about his integrity. Past service record of respondent no.
1 was found to be sub-par and short of the exacting stan-
dard expected from a judicial officer.
13 It is also noticed from the record that the disci-
plinary enquiry came to be dropped in lieu of compulsory
retirement of respondent no.1. That was a composite recom-
mendation made by the Administrative Committee and com-
mended to the Full Court of the High Court. The two being
inseparable, and the solitary remark about integrity with
the service record being sufficient in law to proceed
against the judicial officer, we fail to comprehend as to
how the conclusion reached by the competent authority can
be said to be arbitrary or manifestly wrong."
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CONCLUSION
23. Thus, the law on compulsory retiring a
Judicial Officer is no more res integra. The
Order of compulsory retirement is not a
punishment. The compliance of principles of
natural justice is not necessary. A single
uncommunicated adverse remark in the entire
service record or doubtful integrity is enough to
retire a Judicial Officer compulsory in public
interest. Any promotion or grant of higher pay
scale / selection grade cannot have any impact on
the order of compulsory retirement. The Full
Court, on the collective wisdom of all the Judges
and considering the general reputation of an
employee, without any tangible material against
him/her, may compulsorily retire a Judicial
Officer in public interest and judicial review of
such order is permissible only on very restricted
grounds. In the present case, it is true that 14
complaints received by the High Court, were
ordered to be filed. However, filing of such
complaints may not ipso facto wipe out the
subjective satisfaction and deliberation of the
High Court, which has been arrived at by careful
scrutiny and filtration at three stages. Before
the petitioner was ordered to retire, he was
facing a preliminary inquiry being Vigilance
complaint No.291 of 2008 relating to corrupt
practices, however, it was closed in view of the
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impugned Notification. We may reiterate that
sometimes it would be very tough to gather
concrete or material evidence to prove the
doubtful integrity and make it part of the
record, and it would be impracticable for the
Reporting Officer or the competent controlling
officer writing the Confidential Report to give
specific instances of shortfalls, supported by
evidence. The entire exercise of the High Court
stems out of special circumstances doctrine. The
opinion formed by the Administrative Committee,
which undertakes the task of information of
various sources, and the perception formed of
integrity of the Judicial Officer cannot be
tinkered with by exercising powers under Article
226 of the Constitution, more particularly when
it is sanctioned further by the Standing
Committee and the Full Court. The impression of
the Judicial Officer is premised on the
perception by the High Court, after careful
circumspection and deliberation, and it would be
on preponderance of probability for entertaining
a doubt about integrity of an official which is
based on substance, matter, information etc.
Therefore, in such circumstances, opinion formed
by the High Court cannot be interfered for the
reason that it is formed sans any material. The
satisfaction and the recommendation of the
Administrative Committee, Standing Committee and
Full Court of the High Court cannot be interfered
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with unless it is tainted with patent illegality,
breach of procedure causing prejudice to the
Judicial Officer, or it is a grave
disproportionate measure.
24. All the aspects of the decision /
deliberation and satisfaction of the High Court
exclusively emanate from the overall reputation
of the Judicial Officers. As held by the Supreme
Court in the case of R.C.Chandel (supra)
"Judicial service is not an ordinary government
service and the Judges are not employees as such.
Judges hold the public office; their function is
one of the essential functions of the State. In
discharge of their functions and duties, the
Judges represent the State. The office that a
Judge holds is an office of public trust. A Judge
must be a person of impeccable integrity and
unimpeachable independence. He must be honest to
the core with high moral values. When a litigant
enters the courtroom, he must feel secured that
the Judge before whom his matter has come, would
deliver justice impartially and uninfluenced by
any consideration. The standard of conduct
expected of a Judge is much higher than an
ordinary man. This is no excuse that since the
standards in the society have fallen, the Judges
who are drawn from the society cannot be expected
to have high standards and ethical firmness
required of a Judge. A Judge, like Caesar's wife,
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must be above suspicion. The credibility of the
judicial system is dependent upon the Judges who
man it. For a democracy to thrive and rule of law
to survive, justice system and the judicial
process have to be strong and every Judge must
discharge his judicial functions with integrity,
impartiality and intellectual honesty."
25. Any breach of the pristine standards/values
as enumerated above, will invite scrutiny from
the High Court, and any Judicial Officer, whose
conduct / reputation / behavior is found
impinging the same can either attract
disciplinary proceedings or compulsory retirement
in public interest, depending upon the extent of
breach. Thus, in view of the settled legal
proposition, this Court cannot delve into the
wisdom of the Full Court of the High Court, which
has formulated the opinion of
assessment/valuation by considering multiple
factors of service record of the petitioner, more
particularly in wake of the fact, that the
petitioner has not alleged patent illegality or
mala fide on the decision making process adopted
by the High Court.
26. Any breach of the pristine standards / values
as enumerated above, will invite scrutiny from
the High Court, and any Judicial Officer, whose
conduct / reputation / behavior is found
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impinging the same can either attract
disciplinary proceedings or compulsory retirement
in public interest, depending upon the extent of
breach. Thus, in view of the settled legal
proposition, this Court cannot delve into the
wisdom of the Full Court of the High Court, which
has formulated the opinion of
assessment/valuation by considering multiple
factors of service record of the petitioner, more
particularly in wake of the fact, that the
petitioner has not alleged patent illegality or
mala fide on the decision making process adopted
by the High Court.
27. In light of the foregoing observations, the
present writ petition fails. The same is hereby
dismissed.
Sd/-
(A. S. SUPEHIA, J)
Sd/- .
(R. T. VACHHANI, J)
NVMEWADA
