D.R.Rahul vs The High Court Of M.P.& Anr.
2021 Latest Caselaw 8900 MP

    HIGH COURT OF MADHYA PRADESH : JABALPUR
                  (Division Bench)


                           W.P. No.6045 of 2000

                             D.R. Rahul
                              -Versus-
                   The High Court of M.P. and another

_______________________________________________________
CORAM :
      Hon'ble Shri Justice Ravi Malimath, Chief Justice.
      Hon'ble Shri Justice Vijay Kumar Shukla, Judge.

Shri Manoj Kumar Sharma, Advocate for the petitioner.
Shri Ashish Shroti, Advocate General for the respondents.
----------------------------------------------------------------------------------

                                 ORDER

(Jabalpur, dtd.16.12.2021)

Per : Vijay Kumar Shukla, J.-

The instant petition has been preferred under Article 226

of the Constitution of India, seeking issuance of a writ of certiorari

for quashing the resolution of the Full Court Meeting held on 8-7-

2000, on the basis of which recommendations were made for

compulsory retirement of the petitioner. He has also prayed for a

writ in the nature of certiorari for quashment of the order dated 29-

8-2000, whereby the State Government has passed the order of

compulsory retirement against the petitioner in exercise of powers

under Rule 42(1)(b) of the Madhya Pradesh Civil Services (Pension)

Rules, 1976 [hereinafter referred to as "the Rules 1976"]. A further

prayer is made for quashing of the resolution, whereby the Full

Court Meeting conducted by the respondent No.1, has found the

petitioner unfit for grant of Selection Grade Scale in the cadre of

Higher Judicial Services. The petitioner has also sought for a

direction to the respondents to grant him Selection Grade in

accordance with law, reinstating him together with all consequential

benefits.

2. The factual expose', adumbrated in a nutshell, are that

the petitioner joined on the post of Civil Judge, Class-2 on 19-6-

1975. Thereafter, he was promoted to the post of Chief Judicial

Magistrate. Vide order dated 24-5-1989 the petitioner was further

promoted to the post of Additional District & Sessions Judge from

the post of Chief Judicial Magistrate. He joined his duty on 26-9-

1989 as 4th Additional District & Sessions Judge at Gwalior.

3. For the year 1989-90 his Annual Confidential Report

(ACR) was graded in the category of "C- Good" and in the year

1990-91 he was graded as "B-Very Good". Thereafter the

petitioner was transferred from Gwalior to Barwani, where he joined

his duty on 19-7-1991 and discharged his duties as Additional

District & Sessions Judge till 16-7-1992. At the relevant time Shri

T.C. Jain was the then District & Sessions Judge, Mandaleshwar.

The petitioner had incurred his displeasure as he had not released

certain accused persons on bail on the same day in Criminal Case

No.602/1992, who were the relatives of the District & Sessions

Judge. As pleaded, thereafter Shri T.C. Jain, the then District &

Sessions Judge turned hostile and lost no opportunity to pinprick the

petitioner. He even made complaints to the High Court against the

petitioner. It is averred that he had written the ACR of the petitioner

for the year 1991-92 and gave the remark that the integrity of the

petitioner is doubtful and, therefore, he does not enjoy a good

reputation.

4. It is strenuously urged by the petitioner that besides the

above, there is no entry in his other ACRs of doubtful integrity.

The annual inspection made by the Portfolio Judge in the year 1991-

92 also did not indicate any doubtful integrity against the petitioner.

It is putforth that the petitioner was promoted and given

appointment in the higher payscale, and he was granted Junior

Administrative Grade by order dated 24-9-1994. Thus, it is

vehemently argued that the service period of the petitioner from the

year 1989 to 1995 was fairly and constantly good. His ACRs for

the years 1992-93, 1993-94 and 1994-95 were written by different

Senior District Judges, who have graded him in the category of "C-

Good".

5. It is urged with vehemence that despite such a good

record of the petitioner, only on the basis of the solitary ACR written

by the then District & Sessions Judge, Shri T.C. Jain, a reversion

order dated 24-7-1995 against the petitioner was passed reverting

him to the post of Additional Chief Judicial Magistrate.

6. The reversion order was assailed by the petitioner before

this Court and the matter came up for consideration before the Co-

ordinate Bench in L.P.A. No.204 of 1996, whereby vide order dated

9-01-1998 the impugned order of reversion was quashed. It is

setforth that after reversion of the petitioner he was posted at Indore

as Additional Chief Judicial Magistrate. The ACR of the petitioner

for the year 1995-96 mentions that he is facing a departmental

enquiry and he has been recently demoted from the post of ADJ to

the post of II Civil Judge, Class-1. According to the petitioner, both

these statements are factually incorrect. He was not facing any

departmental enquiry and in fact, he never faced any departmental

enquiry in his entire career. Further, he was not demoted to the post

of II Civil Judge, Class-1 as he was demoted to the post of Chief

Judicial Magistrate. It is strenuously urged that the petitioner has

reason to believe that his ACRs for the subsequent period : 1996-97

and 1997-98 have been graded in the category "C-Good".

7. It is putorth that order passed by the Division Bench of

this Court in L.P.A. No.204 of 1996 was challenged before the

Hon'ble Supreme Court in the S.L.P. No.7002 of 1998. Therein, a

chart was appended indicating the ACRs of the petitioner for the

year 1989-90 to 1994-95. The petitioner has not received any

adverse remarks. He further believes that for the years 1998-99 and

1999-2000 he was graded in "C-Good" category. It is asseverated

that despite such good records, the respondents have made

recommendation to treat the petitioner as a "dead-wood", which is

arbitrary and capricious. It is assiduously urged that the officers

having bad records than the petitioner, have not been recommended

for compulsory retirement by the respondents. It is argued that the

petitioner has not been found fit for Selection Grade erroneously, by

the Full Court Meeting.

8. Be it noted, the petitioner has not alleged mala fide

against any individual. Though, he has made certain remarks

against the then District & Sessions Judge, Shri T.C. Jain, but the

allegations of mala fide are not specifically pleaded in the writ

petition and no one has been made a party by name alleging mala

fide.

9. The respondents have raised a preliminary objection that

the petition suffers from misjoinder of cause of auction. It is argued

that non-grant of Selection Grade to the petitioner in the years 1998

and 2000, is a separate cause of action. The matter of compulsory

retirement is altogether different than grant of Selection Grade and

the two cannot be clubbed together in one petition. The petitioner

has confined the present petition to challenge in respect of

compulsory retirement only.

10. The respondents submitted that the petitioner was

appointed as a Civil Judge, Class-2 in the State Judicial Services and

he joined the post on 19-06-1975. Thereafter, he was promoted to

the post of Civil Judge, Class-I in December, 1983 and as Chief

Judicial Magistrate in 1987. By order dated 14-6-1989 the

petitioner was temporarily appointed in officiating capacity in the

Higher Judicial Services and was posted as Additional District &

Sessions Judge at Gwalior. He was not found fit for confirmation in

the cadre of Higher Judicial Service by the Full Court in its meeting

held on 1st to 3rd May, 1992.

11. Thereafter, matter was placed for consideration before

the Full Court in its meeting dated 6/7-05-1994 and the

recommendations made by the Administrative Committee were

approved. The case of the petitioner for confirmation was again

placed before the Administrative Committee No.1 in its meeting

conducted on 25-4-1995. The Administrative Committee resolved

that since the petitioner had been found unfit for confirmation on

two occasions, he be reversed to the post of Chief Judicial

Magistrate. The recommendation of the Committee was placed

before the Full Court in its meeting dated 29-04-1995, which was

accepted. The petitioner was reverted to the post of II Civil Judge,

Class-1/Additional Chief Judicial Magistrate and was posted at

Indore.

12. The said order of reversion of the petitioner was

challenged in the writ petition, forming the subject-matter of W.P.

No.3030 of 1995, which was dismissed vide order dated 12-9-1996.

Being aggrieved by the order passed by the learned Single Judge,

the petitioner preferred an L.P.A. before the Division Bench, which

was registered as L.P.A. No.204 of 1996. The Division Bench held

that since the petitioner has been officiating far beyond the period

of probation as prescribed under the Rules 1976, he would be

deemed to have been confirmed, in view of the decision of the

Hon'ble Apex Court rendered in Dayaram Daya's case reported in

JT 1997 (7) SC 520. It was further held that Rule 9(5) of the Rules

of 1961 did not govern the terms and conditions of service of a

promotee judicial officer, while sub-rules of Rule 9 . i.e. (1), (2), (3)

and (4) shall be applicable to an officiating promottee District Judge.

Applying the rules applicable to directly recruited District Judges,

the Division Bench extended the benefit of those rules to the

petitioner also and in view of the decision of the Dayaram Daya's

case (supra) this Court observed that the petitioner was

automatically confirmed after 2 ½ years of his appointment as

District Judge.

13. In this view of the matter, the Division Bench observed

that the resolution of the Full Court regarding non-confirmation and

reversion would be of no avail. The impugned order reverting the

petitioner from service was set aside and the same was challenged

before the Apex Court in an SLP. Since, in the meantime, the

petitioner was compulsorily retired, the Hon'ble Supreme Court

declined to go into the merits of the case and disposed of the appeal

having rendered infructuous.

14. It is argued that the work, performance and conduct of

the petitioner, as a Judicial Officer, was not satisfactory. Right from

the very inception of his career as a Judicial Officer, the petitioner

did not improve and was always clouded with unsatisfactory

performance of his work, performance and conduct as a judicial

officer.

15. It is submitted by the respondents that in the year 1977-

78, the then District & Sessions Judge wrote in the ACR of the

petitioner, that he should acquaint himself with procedural and

substantive law as well rules. In the year 1979-80, his conduct was

found unsatisfactory and his knowledge of law and procedure was

not found upto the mark. In the year 1984-85, it was reported by the

District & Sessions Judge, that there were number of complaints

against the petitioner, albeit - anonymous, regarding his honesty and

integrity. Again, in the year 1985-86, same remarks were reported

in his ACR. It is stated that in the year 1986 (June, 1986 to October,

1986), the judgements passed by the petitioner were slipshod and

perfunctory. Moreover, he did not have a good grasp over Civil Law

and was not found to be a sound Judge of facts and law. His civil

judgments were reported to be of poor quality.

16. It is assiduously urged that during the year 1991-92

while the petitioner was working as an Additional District Judge, he

was not only found lacking on administrative side, but his integrity

was also reported to be highly doubtful. Judgments delivered by the

petitioner reflected injudicious approach and he did not enjoy good

reputation.

17. The case of the petitioner was placed for confirmation

before the Full Court in its meeting held in the year 1992, 1994 and

1995 and he was not found fit for confirmation in the cadre of

Higher Judicial Service. In the year 1995-96 a departmental enquiry

was sought to be initiated against the petitioner on the basis of

complaint made by the District Judge. However, on receipt of an

application from him and on consideration thereof, the petitioner

was only warned to be more judicious in future and the departmental

enquiry was dropped at that time.

18. In the year 1996-96 disposal of cases of the petitioner

was found to be poor and he was directed to improve his disposal,

and work hard to justify his employment. Similar remarks regarding

disposal for the years 1997-98 and 1998-99 transpire in his ACR.

There were complaints against the petitioner when he was posted as

Additional District Judge at Katni. The petitioner was graded "D-

Average" during the period 1994-95 to 1997-98. In the year 1998-

99 he was graded "C-Good" and again in the year 1999-2000 he was

graded "D-Average".

19. A bare perusal of the ACRs of the petitioner would

reveal that right from the very inception, the he has not proved

himself to be a good and honest judicial officer. His work and

performance has been 'average' or 'below average'. Warnings were

given to him from time to time. The adverse remarks made against

the petitioner were never expunged. The Administrative Committee

as well as the Full Court found the petitioner "dead-wood" to be

chopped off on the basis of overall assessment of his work,

performance and conduct, more particularly, his performance during

the recent past years.

20. We have heard the learned counsel for the parties and

bestowed our anxious consideration on their respective arguments

advanced.

21. The learned counsel for the petitioner assiduously

argued that except one remark of the year 1990-91, there is no any

remark against the petitioner as regards his judicial integrity. He

submitted that in view of the judgment passed by the Division

Bench in the L.P.A. No.204 of 1996, dated 9-01-1998, the aforesaid

remarks made against the petitioner, were wiped out. The

contentions of the petitioner do not deserve acceptance. The case

pertained to assail the order of reversion and the Division Bench by

applying the Rules applicable to the direct recruitees to the post of

District Judge, held that the petitioner got automatically confirmed.

However, that would not mean that the service record of the

petitioner was not comprising of adverse entries and other materials,

on the basis of which, the Administrative Committee as also the Full

Court Meeting did not find him fit for confirmation in the Higher

Judicial Services and passing of resolution of reversion was washed

away and the service record remained the same. The adverse entries

and remarks in the ACRs were not quashed by the Court.

22. The respondents have produced a chart before this Court

indicating the ACR Gradings of the petitioner for different years. In

the years 1976, 1977, 1979 and 1984 he was awarded "D-Average",

whereas in the years 1980, 1981, 1982, 1983, 1985 and 1989 he

secured "C-Good". However, in the years 1987, 1988 and 1990 the

petitioner was awarded "B-Very Good". The remarks of the

petitioner in the ACR of the year 1991 grading him "E-Below

Average" transpires his doubtful integrity. It reads thus:

"Remarks about supervision of the distribution of business among and his control over the subordinate courts. He has not inspected the work of his subordinate staff. He has also not taken any interest in the work of Nazarat Section. Remarks about reputation of integrity and impartiality - His integrity is highly doubtful as such he is not impartial and he does not enjoy good reputation. General Reputation : Not good. General remarks : Though he is intelligent and industrious but does not reflect in his orders and judgments. Hin conclusions in the judgment and orders are biased. On overall assessment he comes to Category - E."

23. The arguments advanced by the learned counsel for the

petitioner that the aforesaid entry has been wiped out in the light o

the judgment passed by the Division Bench in the L.P.A. No.204 of

1996, do not deserve acceptance. As we have already held, that the

said judgment was passed in the context of examining validity of the

reversion and confirmation of the same, and it would not mean that

the service records comprising of adverse entries and other material

of the petitioner stood washed away. The service records remained

the same.

24. On consideration of overall service records of the

petitioner and taking into consideration the entries in the ACR

pertaining to the year 1991 which entail doubtful integrity, we

perceive no illegality or error in the decision of the Full Court

Meeting, making recommendation for compulsory retirement of the

petitioner declaring him "dead-wood".

25. At this juncture it is apt to refer to the decision of the

Apex Court rendered in the case of Pyare Mohan Lal vs. State of

Jharkhand and others, (2010) 10 SCC 693, wherein in para 29 it is

ruled thus :

"29. ........ More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement....."

Thus, a single entry regarding integrity is sufficient to

award compulsory retirement. Apart from that, overall service

record of the petitioner makes it luminescent, that he has been

rightly adjudged fit to be retired compulsorily by the Full Court

Meeting.

26. The law relating to compulsory retirement is no longer

res integra. In Baikuntha Nath Das vs. Chief District Medical

Officer, (1992) 2 SCC 299, the Apex Court has laid down certain

criteria for the courts, on which it can interfere with an order of

compulsory retirement and they include mala fides, if the order is

based on no evidence, or if the order is arbitrary in the sense that no

reasonable person would form the requisite opinion on the given

material i.e. if it found to be a perverse order. The Court held as

under :

"(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 the Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary- in the sense that no reasonable person would form the requisite opinion on the given material : in short, if it is found to be a perverse order.

(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter- of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.

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

(Emphasis added).

27. Further, in the case of State of Gujarat vs. Umedbhai M.

Patel, (2001) 3 SCC 314, the law relating to compulsory retirement

has been crystallized and summarized as under :

"(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 favour of the officer.

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

28. In view of the aforesaid enunciation of law and in the

conspectus of the arguments advanced on behalf of the parties, we

find that the respondents have considered the entire service records

of the petitioner in proper perspective, while passing the impugned

order. We do not perceive any illegality or perversity of approach in

the impugned order, warranting any interference in the present writ

petition.

29. Ex-consequenti, the writ petition, being sans substratum,

is dismissed without any order as to costs.

Pending interlocutory application(s), if any, also stands

disposed of.

      (Ravi Malimath)                             (Vijay Kumar Shukla)
        Chief Justice                                     Judge


ac.


 Digitally signed by AJAY KUMAR CHATURVEDI
 Date: 2021.12.16 18:06:22 +05'30'