Orissa High Court
Ashok Kumar Agarwala vs Registrar General Of Orissa on 19 January, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
WRIT PETITION (CIVIL) No.19322 OF 2014
(An application under Articles 226 & 227 of the Constitution of India)
Ashok Kumar Agarwala ...... Petitioner
Versus
Registrar General of Orissa
High Court, Cuttack and others ....... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Mr. Manoj Kumar Mohanty, Advocate
For Opposite Parties : Mr.P.K.Muduli, A.G.A.
CORAM : THE CHIEF JUSTICE
JUSTICE B.P. ROUTRAY
JUDGMENT
19.01.2022
B.P. Routray, J.
1. The Petitioner - a Judicial Officer, has challenged the order of
compulsory retirement dated 23rd August, 2012 under Annexure-1 and
prayed for consequential reliefs.
2. The Petitioner was given compulsory retirement on attaining the
age of 50 years in terms of Rule 44 of the OSJS and OJS Rules, 2007.
He was an Officer in the cadre of Civil Judge and last worked as JMFC,
Motu.
3. The Petitioner initially joined as Probationary Munsif, OJS-II on
17th November, 1997. He then worked in different capacities as Civil
Judge (Jr. Division) and Judicial Magistrate First Class at different
places in Odisha. On 21st June, 1999 the Petitioner joined as Civil Judge
(Jr. Division)-cum-JMFC, Sorada in the judgeship of Ganjam-Gajapati
and relieved on 6th May, 2002. He joined as JMFC, Daringibadi on 10th
May, 2002 in the judgeship of Kandhamal-Phulbani and relieved from
Daringibadi on 13th June, 2005. He served as Munsif at Sambalpur,
Additional Civil Judge-cum-JMFC at Bhubaneswar, Sorada,
Daringibadi, Cuttack and lastly at Motu. He also served as Inspector of
Process-cum-JMFC at Dhenkanal and Sambalpur.
4. While serving at Sorada, an inquiry was conducted by the then
District Judge, Ganjam in respect of the allegations regarding passing of
discriminatory orders. The High Court directed that he should be let off
with a warning to be careful in future and guard against such type of
mistake. This was duly communicated to him.
5. Further while serving at Daringibadi, similar allegations were
received against him. Based on the report of the District Judge,
Kandhamal-Phulbani and the explanation offered by the Petitioner,
disciplinary proceeding No.10 of 2006 was initiated against him as per
the charges communicated in letter No.4428 dated 3rd July, 2007. In the
said disciplinary proceeding, four charges were framed. Those were to
the effect that the Petitioner dealt with bail petitions indiscriminately in
different cases showing favour to a particular advocate. Secondly, he
rejected the prayer for bail of an applicant arbitrarily and again granted
him bail after one day. Thirdly, the Petitioner passed orders for release
of property in a particular case arbitrarily. Fourthly, the Petitioner
advanced the date in a criminal case, framed charges, examined
witnesses, dispensed with accused examination, heard arguments and
posted for judgment in one single day without giving any notice to the
prosecutor.
6. The disciplinary proceeding continued and the District Judge,
Kandhamal was appointed as the Inquiry Officer. As the order of
compulsory retirement was issued during pendency of said proceeding,
the same was dropped.
7. During his entire service career, the Petitioner was graded as
"Good" in the year 1999, 2004 and second part of the year 2010 only.
For rest of the periods from 1997 to 2010, he was rated with average
grading. The details as found from the personal file and CCRs of the
Petitioner are as follows:
Year Grading
1998 - Average
1999 - Good
2000 - Average
2001 - Average
2002 - Average
2003 - Average
2004 - Good
2005 - Average
2006 - Average
2007 - Average
2008 - Average
2009 - Average
2010(I) - Average
2010(II) - Good
8. The Petitioner was not found suitable for promotion on repeated
consideration by the Standing Committee. He was also not found
suitable to get ACP-II scale and only granted ACP-I scale in the year
2002.
9. These are the admitted facts on record.
10. It is contended on behalf of the Petitioner that neither District
Judge, Ganjam nor District Judge, Kandhamal have ever reported
anything touching on the integrity of the Petitioner during his
incumbency at Sorada and Daringibadi respectively. It is also submitted
that such allegations against him with regard to irregularity and illegality
are not correct and no adverse remark in the confidential report has ever
been communicated to him.
11. Shri Mohanty, learned counsel for the Petitioner submitted that in
absence of any adverse remark in the confidential report of the
Petitioner touching on his integrity or about his inability to achieve the
prescribed yardstick, the recommendation of the Full Court for his
compulsory retirement is arbitrary. It is also submitted that such un-
communicated entries in the CCRs cannot be relied upon for
compulsory retirement of the Petitioner as held in Deb Dutt v. Union of
India AIR 2008 SC 2513. It is further contended that the
recommendation of the Full Court has been concurred with by the
Government mechanically without an independent assessment.
12. Opposite Party No.1, the Registrar General of High Court of
Orissa is the main contesting party. Mr.Muduli, learned counsel for
Opposite Parties 1 and 2 submitted that the Full Court after taking into
account the totality of the circumstances, the CCRs and the report of the
review committee has recommended the Petitioner's premature
retirement in public interest after forming an opinion that the Petitioner
does not possess the standard efficiency required to discharge the duty
of the post held by him. The Petitioner, a Judicial Officer, during his
service carrier failed to earn even three consecutive 'Good' ratings. He
was also found unsuitable for promotion and ACP-II scale. It is not that
only CCRs for a particular period of performance was taken into
consideration. An overall assessment was made of the performance of
the Petitioner during his entire service period and he was found
unsuitable for being continued as such. It is also submitted that the
scope of judicial review in matters of compulsory retirement is limited.
13. In support of his submissions Mr. Mohanty, learned counsel for
the Petitioner relies on the decisions in Indramani Sahu v. State of
Orissa 2017 (II) ILR-CUT-1289, Epari Vasudeva Rao v. State of
Odisha 2014 (II) OLR-381, Subhendra Mohanty v. High Court of
Orissa 2017 (II) OLR 628, Dev Dutt v. Union of India AIR 2008 SC
2513, Dr. Durga Prasanna Choudhury v. State of Orissa 2012
(Supp.-II) OLR-689, Sukhdev Singh v. Union of India (2013) 9 SCC
566, Baikuntha Nath Das v. Chief District Medical Officer, Baripada
(1992) 2 SCC 299, J. D. Shrivastava v. State of M.P. AIR 1984 SC
630, S. Ramachandra Raju v. State of Orissa AIR 1995 SC 111,
Narasingh Patnaik v. State of Orissa JT 1996 (3) S.C.754 and Brij
Behari Lal Agarwal v. Hon'ble High Court of Madhya Pradesh
(1981) 1 SCC 490.
14. Mr. Muduli, learned counsel for the Opposite Parties relies on the
decisions in Baikuntha Nath Das v. Chief District Medical Officer,
Baripada (1992) 2 SCC 299, State of U.P. v. Vijay Kumar Jain (2002)
3 SCC 641, Chandra Singh v. State of Rajasthan (2003) 6 SCC 545,
Nawal Singh v. State of U.P. (2003) 8 SCC 117 and Punjab State
Power Corporation Limited v. Hari Kishan Verma (2015) 13 SCC 156.
15. The entire personal record of the Petitioner including his CCRs
have been produced before this Court and have been perused.
16. Rule 44 of the OSJS and OJS Rules 2007 (hereinafter referred to
as '2007 Rules') authorizes the High Court to retire in public interest
any member of the service who has attended the age of 50 years. Such
consideration for all the Officers in service shall be made at least three
times i.e., when he is about to attend the age of 50, 55 & 58 years.
17. Judicial Officers of the subordinate courts in the State are under
the administrative control of the High Court and such power of the High
Court on administrative jurisdiction to recommend compulsory
retirement of a member of judicial service in accordance with the Rules
framed have been reiterated by the Supreme Court in Registrar, High
Court of Madras v. R.Rajiah, (1988) 3 SCC 2011. The Supreme Court
has further observed that the High Court while exercising its power of
control over the subordinate judiciary is under a constitutional
obligation to guide and protect Judicial Officers from being harassed.
18. The object of compulsory retirement is to weed out the dishonest,
the corrupt and the deadwood. It is true that if an honest Judicial Officer
is compulsorily retired it might lower the morale of his colleagues and
other members in the service. In matters of compulsory retirement in
public interest, the Supreme Court has laid down the governing legal
principles in Baikuntha Nath Das v. Chief District Medical Officer,
Baripada (supra) as under:
"34. 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 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.
Interference is permissible only on the
grounds mentioned in (iii) above. This aspect has
been discussed in paras 30 to 32 above."
19. In Rajasthan State Road Transport Corporation v. Babulal
Jangir (2013) 10 SCC 551, it was held that;
"27. It hardly needs to be emphasised that the order of
compulsory retirement is neither punitive nor
stigmatic. It is based on subjective satisfaction of the
employer and a very limited scope of judicial review
is available in such cases. Interference is permissible
only on the ground of non-application of mind, mala
fide, perverse, or arbitrary or if there is non-
compliance with statutory duty by the statutory
authority. Power to retire compulsorily the
government servant in terms of service rule is
absolute, provided the authority concerned forms a
bona fide opinion that compulsory retirement is in
public interest."
20. The Supreme Court in S. Ramachandra Raju v. State of Orissa,
1994 Supp.(3) SCC 424 further held as follows:
"9............ The entire service record or character
rolls or confidential reports maintained would furnish
the back drop material for consideration by the
Government or the Review Committee or the
appropriate authority. On consideration of the totality
of the facts and circumstances alone, the government
should form the opinion that the government officer
needs to be compulsorily retired from service.
Therefore, the entire service record more particular
the latest, would form the foundation for the opinion
and furnish the base to exercise the power under the
relevant rule to compulsorily retire a government
officer. When an officer reaching the age of
compulsory retirement, as was pointed out by this
Court, he could neither seek alternative appointment
nor meet the family burdens with the pension or other
benefits he gets and thereby he would be subjected to
great hardship and family would be greatly affected.
Therefore before exercising the power, the competent
appropriate authority must weigh pros and cons and
balance the public interest as against the individual
interest. On total evaluation of the entire record of
service if the government or the governmental
authority forms the opinion that in the public interest
the officer needs to be retired compulsorily, the court
may not interfere with the exercise of such bona fide
exercise of power but the court has power and duty to
exercise the power of judicial review not as a court of
appeal but in its exercise of judicial review to
consider whether the power has been properly
exercised or is arbitrary or vitiated either by mala fide
or actuated by extraneous consideration or arbitrary in
retiring the government officer compulsorily from
service."
21. On a careful perusal of the record, it is seen that the authority was
of the opinion that the Petitioner does not possess the standard
efficiency required to discharge the duty of the post held by him. As per
the notification of the State Government in G.A. Department dated 24th
November, 1987, it is prescribed that it will not be in public interest to
retain an employee in service, if he lacks in the standard of efficiency
required to discharge the duties of the post he presently holds.
22. On an overall assessment of the personal record of the Petitioner,
the emerging picture is not favourable to him. During his service career
spanning fourteen years and eight months, he was not able to get a
'good' grading for at least three consecutive years. He was earlier also
let off with a warning to be careful in future. He was not found suitable
either for promotion to the higher post or for getting higher pay in ACP-
II scale. His performance was often rated 'average'. There have been
allegations of his passing indiscriminate orders in particular cases or
failing to maintain uniformity or consistency in passing judicial orders.
Charges on the above score were framed against him in the departmental
proceedings.
23. The overall assessment of the Petitioner's entire service carrier is
that his performance failed to meet the expected standards of
competency. The contention made on behalf of the Petitioner that no
adverse entry is against him touching to his integrity or inefficiency is
not found correct upon a perusal of the records. It is true that he was not
retired compulsorily for being dishonest but for being inefficient and not
meeting the required standards. The question therefore of non-
communication of adverse entries in the CCRs does not, in the
circumstances, arise.
24. The submission put forth with regard to lack of subjective
satisfaction of the Governor in the process of consultation is not found
convincing. Rule 44 of 2007 Rules postulates that, the Governor shall in
consultation with the High Court, if he is of the opinion that it is in the
public interest so to do, have absolute right to retire any member of the
service who has attained the age of fifty years, by giving him/her notice
of not less than three months in writing or three months pay and
allowances in lieu of such notice. The scope, meaning and process of
consultation between the High Court and the Governor has been
explained in the decisions of the Supreme Court in S.P.Gupta v. Union
of India AIR 1982 SC 149, SC Advocates-on-Record Association v.
Union of India AIR 1994 SC 268, The State of West Bengal v.
Nripendra Nath Bagchi AIR 1966 SC 447, State of Bihar v. Bal
Mukund Sah (2000) 4 SCC 640 and in Supreme Court Advocates-on-
Record Association v. Union of India (2016) 5 SCC 1.
25. Further, as stated earlier, in the case of Registrar, High Court of
Madras v. R.Rajiah (supra), the Supreme Court held as follows:
"22. It is true that the High Court in its
administrative jurisdiction has power to compulsorily
retire a member of the judicial service in accordance
with any rule framed in that regard, but in coming to
the conclusion that a member of the subordinate
judicial service should be compulsorily retired, such
conclusion must be based on materials. If there be no
material to justify the conclusion, in that case, it will
be an arbitrary exercise of power by the High Court.
Indeed, Article 235 of the Constitution does not
contemplate the exercise by the High Court of the
power of control over subordinate courts arbitrarily,
but on the basis of some materials. As there is absence
of any material to justify the impugned orders of
compulsory retirement, those must be held to be
illegal and invalid."
26. The Petitioner is not correct in contending that only the entries in
the CCRs have been taken into account by the authority. The overall
assessment of all the materials including the ratings of performance in
the CCRs, the nature of allegations, charges in the pending disciplinary
proceeding against him, the report of the review committee, his
performance on judicial as well as administrative side, his reputation as
such during entire service period are among the several factors
considered by the authority before recommending his compulsory
retirement. An overall consideration of all those factors, tested on the
touchstone of the standard of efficiency of the Petitioner as a Judicial
Officer reveals that the decision of authority cannot be said to be as
mala fide or arbitrary or based on no evidence.
27. Considering the scope of judicial interference in such matters
involving compulsory retirement, we do not find any reason to interfere.
The writ petition is dismissed being without merit. No order as to costs.
28. As the restrictions due to resurgence of COVID-19 situation are
continuing, learned counsel for the parties may utilize a printout of the
order available in the High Court's website, at par with certified copy,
subject to attestation by the concerned advocate, in the manner
prescribed vide Court's Notice No.4587, dated 25th March, 2020,
modified by Notice No.4798, dated 15th April, 2021, and Court's Office
Order circulated vide Memo Nos.514 and 515 dated 7th January, 2022.
(B.P. Routray)
Judge
(Dr. S. Muralidhar)
Chief Justice
//C.R.Biswal, Secy.//
