Ashok Kumar Gupta vs Raj. High Court, Jodhpur And Anr
2022 Latest Caselaw 14972 Raj

  HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR


                   D. B. Civil Writ Petition No. 9576/2011


  Ashok Kumar Gupta S/o. Late Sh. Hari Krishna Gupta aged about
  49 years, R/o. "Hari Laxmi Niwas", Outside Chandpole, Sojat City,
  District Pali.
                                                                       ----Petitioner
                                        Versus
  1. Rajasthan High Court, Jodhpur, through its Registrar General.


  2. State of Rajasthan, through the Principal Secretary, Law &
  Legal Affairs Department, Government of Rajasthan, Secretariat,
  Jaipur.
                                                                    ----Respondents


  For Petitioner             :     Mr. R.S. Saluja Advocate.
  For Respondents            :     Mr. G.R. Punia, Senior Advocate
                                   assisted by Mr. Rajendra Prasad
                                   Advocate.



   HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA
         HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

                                        Order

REPORTABLE
  20/12/2022
  By the Court:(Per Manindra Mohan Shrivastava,J.)

1. Instant writ petition under Article 226 of the Constitution of

India has been filed by the petitioner seeking following reliefs:

"It is most respectfully prayed that by an appropriate writ, order or direction:

i) the impugned order Annex-P/7 dated 25.05.2011 along with Government Order dated 24.05.2011, whereby the petitioner was compulsorily retired from the services, may kindly be quashed and set aside and the petitioner may kindly be ordered to be reinstated with all consequential benefits.

ii) the impugned adverse communication dated 16.05.2011 (Annex-P/6) may kindly be declared

(2 of 39) [CW-9576/2011]

as null and void and the same may kindly be quashed and set aside.

iii) The writ petition preferred by the petitioner may kindly be allowed with costs.

iv) any other appropriate order which may be deemed just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioners."

2. The petitioner, who was working as Additional District and

Sessions Judge, is aggrieved by impugned order dated 24.05.2011

by which he has been compulsorily retired from service in public

interest under Rule 53(1) of the Rajasthan Civil Services (Pension)

Rules, 1996 (hereinafter referred to as 'the Rules of 1996').

3. Relevant factual matrix giving rise to this writ petition, stated

in succinct, is that vide order dated 16.04.1990, the petitioner was

initially appointed as Munsiff and Judicial Magistrate under Rule 21

of the Rajasthan Judicial Service Rules, 1955. Upon successful

completion of probation, the petitioner was confirmed on

17.06.1992 in the cadre of Rajasthan Judicial Service(RJS). In

course of time, vide order dated 07.07.1997, the petitioner earned

his promotion in the cadre of Civil Judge (S.D.)-cum-Additional

Chief Judicial Magistrate on ad-hoc basis in the year 1997.

Thereafter, vide order dated 15.07.2002, the petitioner was granted

selection grade of RJS in the pay scale of 12000-16500. In the

year 2003, vide order dated 17.04.2003, the petitioner was

promoted on ad-hoc basis as Additional District and Sessions Judge

for being deputed in Fast Track Courts. In the year 2010, on the

recommendations of the High Court, the petitioner was promoted in

the cadre of Rajasthan High Judicial Service and was appointed as

Additional District and Sessions Judge vide order dated 21.04.2010.

(3 of 39) [CW-9576/2011]

4. While the petitioner was working as Additional District Judge,

having been promoted vide order dated 21.04.2010, a

communication dated 16.05.2011 was received by him from the

Registrar General of the High Court, conveying Annual Confidential

Report for the year 2009 for the period from 12.06.2009 to

31.12.2009. The remarks communicated to the petitioner recorded,

"Arrogant and rude". The petitioner was granted 15 days time to

prefer representation against the said adverse remarks. Thereafter,

vide order dated 24.05.2011, the petitioner was compulsorily

retired from service by invoking Rule 53(1) of the Rules of 1996,

which was conveyed to the petitioner vide communication dated

25.05.2011 from the Registrar (Administration), Rajasthan High

Court, Jodhpur along with a draft of Rs. 3,21,297/-.

The aforesaid order of compulsory retirement of the petitioner

is under challenge in this writ petition.

5. Learned counsel for the petitioner assailed legality and validity

of the order of compulsory retirement of the petitioner on multiple

grounds as stated in the writ petition and argued before us.

6. It is contended by learned counsel for the petitioner that the

order of compulsory retirement of the petitioner is arbitrary,

unreasonable and discriminatory inasmuch as while forming an

opinion based on subjective satisfaction, the competent authority

has failed to examine the entire service record of the petitioner. It

has been contended that the entire service record of the petitioner

was not only satisfactory but also earned him timely promotions

without single supersession. Compulsory retirement could be

ordered only upon satisfaction based on material that the petitioner

had outlived his utility as judicial officer and had become dead

(4 of 39) [CW-9576/2011]

wood and, therefore, it had become necessary to compulsory retire

him in public interest.

7. Next contention of learned counsel for the petitioner is that

though it is well settled that the order of compulsory retirement in

public interest upon completion of minimum period of service and

attaining a particular age is not punishment in that sense, but

nevertheless, the decision to compulsorily retire must be free from

arbitrariness, unreasonableness, malice in law or fact and not a

result of colourable exercise of power. His submission is that the

solitary material to take decision of compulsory retirement of the

petitioner is an adverse remark communicated to him vide

communication dated 16.05.2011, which only recorded, "Arrogant

and rude" and nothing more. Such a solitary remark, as against

satisfactory and unblemished service record, it is contended, could

not at all be made a basis to form an opinion that the petitioner has

outlived his utility to serve as judicial officer and had become dead

wood. Therefore, the decision is per se arbitrary and cannot

withstand the scrutiny of Article 14 of the Constitution of India.

8. Next contention of learned counsel for the petitioner is that

service record of the petitioner was completely unblemished

throughout. Elaborating references from the service record, ACRs,

promotion orders of the petitioner, it has been submitted that in a

long service period of two decades, the petitioner received timely

promotions and last of such promotion granted to him was soon

before the order of compulsory retirement was passed. If the

petitioner was rewarded with promotion on the basis of good

service record of past seven years, vide order dated 21.04.2010,

the service record of recent past of the petitioner was definitely

(5 of 39) [CW-9576/2011]

fully satisfactory entitling him to reward of promotion, which was

based not only on seniority, but on merit also. The compulsory

retirement of the petitioner vide impugned order dated 24.05.2011,

which is within 13 months of his promotion, clearly reflects that the

decision to compulsorily retire the petitioner was contrary to

meritorious and unblemished service record of the petitioner.

9. It is next urged by learned counsel for the petitioner that

apparently, the only basis for compulsory retirement of the

petitioner was adverse remarks pertaining to the year 2009 for the

period from 12.06.2009 to 31.12.2009, which only recorded,

"Arrogant and rude" and nothing more. These remarks were

belatedly communicated to the petitioner after almost 1½ years.

Such a belated communication could not be made a basis to form

an opinion that the petitioner had become dead wood. It is also

urged that in any case, vide communication dated 16.05.2011,

communicating adverse remarks, the petitioner was granted time to

make representation latest by 02.06.2011. However, even before

the petitioner could prefer representation to satisfy the authority

that the recording of adverse remarks had no factual or material

basis, he was visited with the impugned order of compulsory

retirement. Therefore, the exercise of power of compulsory

retirement suffers from malice in law.

10. Further contention of learned counsel for the petitioner is that

till passing of the impugned order of compulsory retirement,

petitioner's integrity, honesty and efficiency were never questioned

in his entire service career. Referring to the ACRs of entire service

period of the petitioner, it is argued that in addition to having

earned promotion as Civil Judge (S.D.)-cum-Additional Chief

(6 of 39) [CW-9576/2011]

Judicial Magistrate in 1997, selection grade in 2002, promotion as

Additional District and Sessions Judge on ad-hoc basis in 2003 and

then as regular Additional District and Sessions Judge in 2010,

ACRs of the recent past were mostly either good or very good with

only few entries of average. From 2000 to 2009, none of the ACRs

of the past ten years preceding the impugned order of compulsory

retirement reflected that the petitioner was not able to discharge

his judicial functions and had, thereby, become dead wood. He

earned more good remarks than average remarks. Therefore, the

order of compulsory retirement of the petitioner is per se arbitrary

and unreasonable.

Referring to the disposal of the cases from 2005 till

compulsory retirement of the petitioner, it has been argued that as

per criterion fixed by the High Court, the percentage of disposal

was very high and in the category of very good, except for the year

2008. Moreover, it is contended that the petitioner was compulsorily

retired in the month of May, 2011 and within a short period in that

year also, the percentage of disposal was 130% and had the

petitioner continued in service, he would have definitely earned

very good rating also like previous years. Therefore, by no stretch

of imagination, the petitioner could be held to be dead wood having

outlived his utility to serve as judicial officer.

11. Referring to the rejoinder and additional affidavit filed in

response to various disclosures made by the respondents in the

reply, it has been argued that as late as on 12.07.2012, i.e. 13½

months after compulsory retirement of the petitioner vide

impugned order, adverse remarks in the ACRs of 2010 were

communicated to the petitioner vide letter dated 10.07.2012 in

(7 of 39) [CW-9576/2011]

which, for the first time in his service career, apart from branding

him as arrogant and rude in his behavior, without any basis, the

petitioner has been given remarks that he is contentious, proud and

ill-mannered with doubtful integrity. Uncalled for remarks were

made that the petitioner tries to foment trouble for his superior and

he instigates the lawyers against the judicial officers and thus, ACR

of doubtful integrity with average grading was communicated to the

petitioner. Assailing the aforesaid ACR, it has been contended that

first part of the ACR, i.e. ACR-I for the period from 01.01.2010 to

30.04.2010 was recorded by the Inspecting Judge, who recorded

incorrect entry to the effect that he inspected petitioner's Court

whereas as per the information received by the petitioner under

Right to Information Act, 2005, the Inspecting Judge never

inspected the petitioner's Court.

As far as second part of the ACR, i.e. ACR-II for the period

from 01.05.2010 to 22.12.2010 is concerned, it has been argued

that the observations are contrary to the record because the

petitioner was permitted to inspect the record which revealed that

the endorsement recorded by the District Judge, Bundi refers to the

remarks inasmuch as the concerned District Judge has clearly

endorsed that not even a single file/order/judgment/charge/issue

was perused/inspected, nor any administrative order/paper was

looked into by the Inspecting Judge at that time. It also revealed

that no inspection note was prepared and no compliance was called

for. Even though Clause-1.B of the ACR proforma requires the

Inspecting Judge to record the area in which the officer concerned

was counselled during inspection, that was not complied with.

Therefore, the petitioner had recorded in Clause 25 of the ACR for

(8 of 39) [CW-9576/2011]

the period from 01.01.2010 to 30.04.2010 that the Inspecting

Judge had not inspected his Court. It is also argued that inspection

record further revealed that even though no inspection was done by

the Inspecting Judge, yet against Clause-1, it was wrongly recorded

as "Yes". It is next contended that the remark of inefficiency was

without any material and rather contrary to the records which show

that for the period from 01.01.2010 to 30.04.2010, disposal rate

was 257% which falls in outstanding category.

12. Learned counsel for the petitioner raised further serious

contention that the record upon inspection revealed that the

remarks contained undated signatures of the Inspecting Judge and,

therefore, no material has been placed before this Court as to on

what basis, such remarks were made. The District Judge (Reporting

Officer) has recorded his remarks on 30.04.2011 certifying integrity

of the petitioner to be beyond doubt. He was the Officer, who had

close opportunity to keep vigil over Subordinate Judges including

the petitioner and also to report general reputation for honesty. In

the case of the petitioner, the District Judge reported general

reputation for honesty as good without pointing out any specific

ground, yet without any basis whatsoever, the Inspecting Judge

recorded serious remark of doubtful integrity against the petitioner.

Learned counsel for the petitioner further submitted that though

according to the respondents, the last material collected to justify

compulsory retirement of the petitioner is special report of the

Inspecting Judge, which seeks to rely upon a report submitted by

the Reporting Officer, i.e., District Judge, Kota, this Court had

directed on 26.02.2019 to produce the said special report, but the

said special report has not been produced, nor stated to be part of

(9 of 39) [CW-9576/2011]

the record, much less, any material to show that any such report

had been dispatched or received in the establishment of the High

Court.

13. Assailing adverse remarks contained in the special report,

which presumably was made basis for compulsory retirement of the

petitioner, it is contended that the observation regarding deliberate

withholding of bail applications filed under Sections 438 and 439

Cr.P.C. for underlined reasons has been recorded without going into

the files and is founded only on the basis of a list containing date of

filing of bail applications and disposal of bail applications.

According to learned counsel for the petitioner, the said remarks

were not based on any actual inspection of the records, otherwise it

would have revealed that adjournments were granted at the

request of counsel concerned fixing next date as per convenience of

both the sides and mainly for the reason that practice of abstaining

from participating in the Court proceedings on the pretext of

condolence etc. was prevalent in Ramganjmandi, District Kota.

There was no complaint from any side regarding adjournments.

Further, no bail was granted in single session trial case at

Ramganjmandi and all the cases where bail under Section 439

Cr.P.C. was granted were triable by Magistrate. It is also contended

that the Reporting Judge was petitioner's Reporting Officer for the

period from 01.05.2010 to 20.12.2010 as District Judge, Kota and

thereafter, as Registrar (Vigilance) in the Registry of the High Court.

Thus, the petitioner was under his vigil till 15.04.2011. Petitioner's

integrity was certified by Reporting Officer and the petitioner was

found to be firm and impartial in dealing with the public and the

bar. Petitioner's public character was also recorded as good and the

(10 of 39) [CW-9576/2011]

judgments on facts and law, as a whole, were also found to be

sound, well reasoned and expressed in good language. The Court of

the petitioner was inspected on 23.10.2010 by the then Reporting

Judge and it was observed that petitioner's behaviour with

colleagues, superiors, staff members and members of the bar was

good and he was cool minded and do not show temper in the Court.

This part of ACR was sent by the Reporting Judge to the Registrar

General on 19.04.2011.

14. It is next contended that the remarks in the special report

that the petitioner decided only uncontested matters where the

witnesses turned hostile, said to be based on report of District

Judge, Kota, is also not available on record. It is the argument that

said remarks are not based on any material. All such remarks of

adverse nature as recorded in the special report, it is argued, are

not only without any material basis, but contrary to the then

existing record.

15. Elaborate submissions have been made on the aspect of

remarks regarding delay in decision of bail applications by referring

to Schedule-A of the special report by submitting that after hearing

the bail applications, the same were being decided immediately

thereafter on board and the gap between the date of institution and

the date of decision was taken to be gap between hearing and

order on such bail applications, which is not correct reflection of the

efficiency of the petitioner.

Reference to 37 complaints against the petitioner has nothing

to do with him because that related to the complaints registered

against Judicial Officer, namely, Ashok Kumar Gupta who was

posted as Additional Chief Judicial Magistrate (ACJM), Kota whereas

(11 of 39) [CW-9576/2011]

the petitioner was never posted in this capacity at Kota. Thus, it is

argued that relying upon the special report, which was contrary to

the record and not based on any material, the petitioner was

wrongly compulsorily retired all of a sudden.

16. In support of his arguments, learned counsel for the petitioner

has placed reliance upon the judgments of the Hon'ble Supreme

Court in the cases of S. Maheswar Rao Vs. State of Orissa &

Another, 1989 Supp (2) SCC 248; Registrar General, High

Court of Patna Vs. Pandey Gajendra Prasad & Others (2012)

6 SCC 357, Nand Kumar Verma Vs. State of Jharkhand &

Others (2012) 3 SCC 580, M.S. Bindra Vs. Union of India &

Others, (1998) 7 SCC 310, State of U.P. Vs. Yamuna Shanker

Misra & Another (1997) 4 SCC 7, Sukhdeo Vs. Commissioner

Amravati Division, Amravati & Another (1996) 5 SCC 103,

Ram Ekbal Sharma Vs. State of Bihar & Another (1990) 3

SCC 504, Rajesh Gupta Vs. State of Jammu and Kashmir &

Others, (2013) 3 SCC 514; High Court of Judicature at Patna

Vs. Ajay Kumar Srivastava & Others, (2017) 5 SCC 138; High

Court of Punjab & Haryana through R.G. Vs. Ishwar Chand

Jain & Another (1999) 4 SCC 579, Baidyanath Mahapatra Vs.

State of Orissa & Another (1989) 4 SCC 664, Swaran Singh

Chand Vs. Punjab State Electricity Board and Others (2009)

13 SCC 758 and judgment of Division Bench of this Court at

Principal Seat, Jodhpur in the case of Brijesh Purohit Vs. The

High Court of Judicature for Rajasthan at Jodhpur (D.B. Civil

Writ Petition No. 3932/2012 decided on 27.10.2017).

17. Per contra, learned Senior Counsel appearing on behalf of

Respondent No. 1, referring to averments made in the reply to writ

(12 of 39) [CW-9576/2011]

petition, would argue that compulsory retirement of the petitioner

has been ordered upon due consideration of entire service record

with more advertence to the record of the recent past including

adverse remarks recorded against the petitioner and also the

material contained in special report of the Inspecting Judge. It is

argued that the petitioner's allegation that his entire service record

was not looked into, cannot be accepted as the same is against the

resolution of the Screening Committee, which clearly shows that

entire service record of the petitioner was looked into. He would

submit that decision of compulsory retirement of the petitioner was

bona fide, based on various material contained in the service record

of the petitioner and it is not correct to say that the only solitary

material was made basis for taking decision of compulsory

retirement of the petitioner. Learned Senior Counsel would argue

that compulsory retirement from service under Rule 53(1) of the

Rules of 1996 is not punitive, but was taken only in public interest

when it became necessary. The petitioner has neither been

dismissed, nor removed from service. The petitioner is entitled to

pension also. Recourse to the aforesaid provision has been taken in

the case of the petitioner as the petitioner was not found worth

keeping in service. Merely because the petitioner was promoted in

the year 2010, it cannot be said that record till that time could not

be taken into consideration because the purpose and object of

compulsory retirement are different. While for the purpose of

promotion, service record of certain period alone is looked into,

while considering whether an officer has become dead wood and his

continuance in service is not in public interest, the entire service

record is required to be looked into and not service record of any

(13 of 39) [CW-9576/2011]

particular single year of promotion. Earlier entries are not washed

out but remain relevant for formation of subjective opinion and

could always be taken into consideration notwithstanding

promotion.

18. Learned Senior Counsel further contended that in the year

1996, the petitioner was rated as an average officer and his

disposal was not found to be adequate and it was observed that he

lacks tacts. Though those remarks were treated to be advisory

upon recommendation, it remains a fact. Thereafter, in the ACR for

the period from 01.01.2000 to 26.07.2000, the petitioner was rated

as an average officer. For the period from 01.01.2002 to

17.04.2002 and 01.01.2003 to 02.05.2003, again the petitioner

was rated as an average officer. For the year 2004 also, he was

rated as an average officer. For the year 2006 (01.01.2006 to

29.04.2006), the Reporting Authority reiterated that disposal of

work of the petitioner was below average. In ACR for the year 2009

(01.01.2009 to 09.06.2009), the petitioner was rated as an average

officer. For the period from 12.06.2009 to 31.12.2009, again

adverse remarks were communicated to the petitioner and the

petitioner was rated as an average officer. Though, it was

communicated with some delay vide letter dated 16.05.2011.

Therefore, it is argued that the petitioner cannot claim that he had

exemplary or very good or good ACRs throughout.

19. It is argued that the petitioner's claim that his service record

was unblemished is not factually correct because there were as

many as 37 complaints filed against him, though 34 complaints

were closed, 3 complains were kept in abeyance at the time of

compulsory retirement.

(14 of 39) [CW-9576/2011]

20. It is further contended that the decision of compulsory

retirement of the petitioner is based on the recommendations of the

Screening Committee (Higher Judiciary Committee), comprising of

Hon'ble the Chief Justice, Hon'ble Administrative Judge and two

Hon'ble Judges for screening cases of judicial officers for

compulsory retirement under the Rules of 1996. The Screening

Committee examined overall performance of all such judicial

officers and based on scrutiny of entire service record,

recommended names of those officers, who may be compulsorily

retired from service in public interest. It is further submitted that

the Screening Committee, while scrutinising the entire service

record, has also taken into consideration the fact that on account of

indolence or doubtful integrity or incompetence to discharge official

duties or inefficiency in due performance of official duties, the

officer has lost his utility. Overall appraisal of work performance of

judicial officers by looking into service records, entailing

supersessions, departmental enquiries, punishments, reputation

regarding integrity, behaviour with members of the bar and

litigants, disposal figures and the ACRs were all closely studied and

only thereafter, the Screening Committee resolved to recommend

the names of the judicial officers including the petitioner for

compulsory retirement, which was finally accepted by the Full Court

in its meeting dated 22.05.2011 and, therefore, on the

recommendations of the High Court, the order of compulsory

retirement of the petitioner was passed on 24.05.2011. It is not

correct that the petitioner was not communicated adverse entries.

21. It is further contended by learned Senior Counsel that order of

compulsory retirement is neither stigma, nor punishment on the

(15 of 39) [CW-9576/2011]

petitioner, but it is based on bona fide conclusion drawn on the

basis of close scrutiny of the entire service record of the petitioner,

which not only contains some good entries and promotions but

several adverse entries also recorded at different point of time.

22. It is further contended by learned Senior Counsel that the

judicial service is essentially sovereign function and level of

efficiency expected from a judicial officer is more than that of an

ordinary employee. From the service record of the petitioner, it

appeared that on several occasions, adverse entries were made

with respect to his disposal of work and also with respect to his

personal attitude to be arrogant and rude.

23. In support of his arguments, learned Senior Counsel placed

reliance upon the judgments of the Hon'ble Supreme Court in the

cases of State of Uttar Pradesh Vs. Batuk Deo Pati Tripathi &

Another (1978) 2 SCC 102, Baikuntha Nath Das & Another

Vs. Chief District Medical Officer, Baripada & Another (1992)

2 SCC 299, State of Orissa & Others Vs. Ram Chandra Das

(1996) 5 SCC 331, Pyare Mohan Lal Vs. State of Jharkhand &

Others (2010) 10 SCC 693, judgments of this Court in the cases

of Yashpal Singh Chaudhary Vs. State of Rajasthan & Another

2014 (1) WLC (Raj.) 263, Siddarth Kumar Jain Vs. High Court

of Judicature for Rajasthan & Another (D.B. Civil Writ Petition

No. 1997/2001 decided on 18.04.2014), Jagdish Prasad

Sharma Vs. State of Rajasthan & Others (D.B. Civil Writ

Petition (CW) No. 782/2011 decided on 17.08.2016),

Gavendra Singh Chauhan Vs. State of Rajasthan & Another

(D.B. Civil Writ Petition (CW) No. 12015/2010 and another

connected writ petition decided on 22.08.2016) and

(16 of 39) [CW-9576/2011]

Barkatullah Khan Vs. The State of Rajasthan & Another (D.B.

Civil Writ Petition No. 12392/2011 decided on 30.03.2017).

24. Before adverting to various contentions, which have been put

forth by learned counsel for respective parties, it would be

profitable to first refer to relevant provision of law under which the

petitioner has been compulsorily retired.

Rule 53(1) of the Rules of 1996 provides for compulsory

retirement in public interest, which is quoted hereinbelow:

"53. Compulsory retirement on completion of 15 years qualifying service.

(1) At any time, after a Government servant has completed 15 years qualifying service or has attained the age of 50 years, whichever is earlier, the appointing authority, upon having been satisfied that the concerned government servant has on account of his indolence or doubtful integrity or incompetence to discharge official duties or inefficiency in due performance of official duties has lost his utility, may require the concerned Government servant to retire in public interest, after following the procedure laid down by the Government in Department of Personnel/Administrative Reforms Department. In case of such retirement, the government servant shall be entitled to retiring pension."

The aforesaid provision empowers the competent authority to

retire any government servant, who has completed 15 years of

qualifying service or has attained the age of 50 years, whichever is

earlier, after recording subjective satisfaction of the authority

forming opinion that it is in public interest to premature retire the

government servant from service.

Such a scheme of compulsory retirement under the Rules of

1996 is different and distinct from imposition of penalty of

compulsory retirement, which is as a measure of punishment on a

proved misconduct. Compulsory retirement in public interest after

completing minimum guaranteed period of services is essentially an

(17 of 39) [CW-9576/2011]

addict of doctrine of pleasure. A Division Bench of this Court in the

case of Yashpal Singh Chaudhary Vs. State of Rajasthan &

Another(supra) held that the concept of compulsory retirement or

premature retirement has its origin from the doctrine of pleasure

and the genesis of the doctrine of pleasure relates back to pre-

independence era when Public Servant Enquiries Act, 1850 was

passed, wherein a provision was envisaged that conducting enquiry

against an employee was optional and the Government had power

to dismiss its servants at pleasure. Tracing legal history of doctrine

of pleasure, incorporation of the same in our Constitution was also

examined and it was held as below:

"When our holy Constitution came into force in the year 1950, the doctrine of pleasure was incorporated with clarity and precision under Article 310 of the Constitution. Article 310 of the Constitution clearly envisage that "except as expressly provided by the Constitution, every person who is a member of defence service or of a civil services of the union, or of an All India Service, or holds any post connected with defence or any civil post under the union, holds office during the pleasure of the President, and every person who is a member of the civil service of a State, or holds any civil post under a State, holds office during the pleasure of the Governor of the State". Considering the amplitude of the pleasure doctrine, there remains no doubt that the rules framed by the State under proviso to Rule 309 or under Acts referable to that Article are subject to the provisions of Article 310 (1) of the Constitution of India. Thus, construing Rule 53 of the Rules of 1996 on the touchstone of pleasure doctrine, as envisaged under Article 310 of the Constitution, there cannot be any quarrel that this subordinate legislation is in consonance and conformity with the law mandated by Article 310 of the Constitution of India."

25. It has been succinctly held in plethora of decisions by the

Hon'ble Supreme Court that compulsory retirement in public

interest is not a penalty in the sense that it has been imposed as a

(18 of 39) [CW-9576/2011]

measure of punishment on allegations of misconduct on a

Government employee.

26. In the case of State of Uttar Pradesh Vs. Batuk Deo Pati

Tripathi & Another(supra), it was held by the Hon'ble Supreme

Court as under:

"19. Learned counsel for the respondent also argued on the other contentions involved in the remaining six issues which were decided against the respondent by the Division Bench prior to the reference made by it to the Full Bench. We see no substance in any of those contentions. There are no words in the order of compulsory retirement casting any stigma on the respondent and therefore the grievance that the order is in the nature of punishment is unjustified. The statement made on behalf of the Government on matters of public policy in which it was claimed that corrupt and undesirable officials were being weeded out cannot justify the conclusion that the respondent was retired compulsorily by reason of any stain attaching to his character. Nor are we impressed by the contention that the Administrative Committee had no material before it on the basis of which it could conclude that the respondent should be retired compulsorily. We do not think that this Court would be justified in interfering in such matters with the exercise of a discretionary power which, by the Constitution, is vested in the High Courts. It appears that the output of the respondent was sub-standard and even if the entries in his character roll prior to the time when he was allowed to cross the efficiency bar are ignored, there was enough material before the Administrative Committee to come to the conclusion to which it did."

27. A three Judges Bench of the Hon'ble Supreme Court in a

subsequent and authoritative pronouncement in the case of

Baikuntha Nath Das & Another Vs. Chief District Medical

Officer, Baripada & Another(supra), upon survey of several

judicial pronouncements, examined the conceptual backdrop of

compulsory retirement in public interest thus:

"10. In Shyam Lal v. State of U.P. (1955) 1 SCR 26 a Constitution Bench of this Court held that an order of compulsory retirement is not a punishment nor is

(19 of 39) [CW-9576/2011]

there any stigma attached to it. It said: (SCR pp. 41-

42) "There is no such element of charge or imputation in the case of compulsory retirement. The two requirements for compulsory retirement are that the officer has completed twenty-five years' service and that it is in the public interest to dispense with his further services. It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence of Note 1 to Article 465-A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity."

11. In T.G. Shivacharana Singh v. State of Mysore AIR 1965 SC 280 another Constitution Bench re-

affirmed the said principle and held that "Whether or not the petitioner's retirement was in the public interest, is a matter for the State Government to consider, and as to the plea that the order is arbitrary and illegal, it is impossible to hold on the material placed by the petitioner before us that the said order suffers from the vice of mala fides."

12. As far back as 1970, a Division Bench of this Court comprising J.C. Shah and K.S. Hegde, JJ. held in Union of India v. J.N. Sinha (1970) 2 SCC 458 that an order of compulsory retirement made under F.R. 56 (j) does not involve any civil consequences, that the employee retired thereunder does not lose any of the rights acquired by him before retirement and that the said rule is not intended for taking any penal action against the government servant. It was pointed out that the said rule embodies one of the facts of the pleasure doctrine embodied in Article 310 of the Constitution and that the rule holds the balance between the rights of the individual government servant and the interest of the public. The rule is intended, it was explained, to enable the government to energise its machinery and to make it efficient by compulsorily retiring those who in its opinion should not be there in public interest. It was also held that rules of natural justice are not attracted in such a case. If the appropriate authority forms the requisite opinion bona fide, it was held, its opinion cannot be challenged before the courts though it is open to an aggrieved party to contend

(20 of 39) [CW-9576/2011]

that the requisite opinion has not been formed or that it is based on collateral grounds or that it is an arbitrary decision. It is significant to notice that this decision was rendered after the decisions of this court in State of Orissa v. Dr Binapani Dei (1967) 2 SCR 625 and A.K. Kraipak v. Union of India (1969) 2 SCC 262. Indeed, the said decisions were relied upon to contend that even in such a case the principles of natural justice required an opportunity to be given to the government servant to show cause against the proposed action. The contention was not accepted as stated above. The principles enunciated in the decision have been accepted and followed in many a later decision. There has never been a dissent-not until 1987.

16. The learned Judges referred to the decisions in R.L. Butail (1970) 2 SCC 876, J.N.Sinha and several other decisions of this Court and held that the confidential reports, even though not communicated to the officer concerned, can certainly be considered by the appointing authority while passing the order of compulsory retirement. In this connection, they relied upon the principle in J.N. Sinha that principles of natural justices are not attracted in the case of compulsory retirement since it is neither a punishment nor does it involve any civil consequences."

The argument that order of compulsory retirement having

adverse effect, principles of natural justice were required to be

followed by giving a show cause notice against proposed action and

further argument that order of compulsory retirement was liable to

be intereferred with only on the ground when it was based upon

uncommunicated adverse remarks and that the employee was not

afforded opportunity of hearing to make representation against the

same, were answered by the Hon'ble Supreme Court as below:

"As the confidential reports rules stood at the relevant time, the appellant could not have appealed against the adverse remarks and if the opinion of the government to retire him compulsorily was based primarily on the said report he could only challenge the order if he was in a position to show that the remarks were arbitrary or mala fide."

(21 of 39) [CW-9576/2011]

It was further emphasised as below:

"21. This Court has taken the view in certain cases that while taking a decision to retire a government servant under Rule 56(j), more importance should be attached to the confidential records of the later years and that much importance should not be attached to the record relating to earlier years or to the early years of service. In Brij Behari Lal Agarwal v. High Court of M.P. (1981) 1 SCC 490-upon which strong reliance is placed by the appellant's counsel-a bench comprising Pathak and Chinappa Reddy, JJ. observed thus: (SCC p.493, para 6)

"...What we would like to add is that when considering the question of compulsory retirement, while it is no doubt desirable to make an overall assessment of the government servant's record, more than ordinary value should be attached to the confidential reports pertaining to the years immediately preceding such consideration. It is possible that a government servant may possess a somewhat erratic record in the early years of service, but with the passage of time he may have so greatly improved that it would be of advantage to continue him in service up to the statutory age of superannuation. Whatever value the confidential reports of earlier years may possess, those pertaining to the later years are not only of direct relevance but also of utmost importance."

Finally, the principles were summarised as below:

"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

(22 of 39) [CW-9576/2011]

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 interfere.

Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above."

28. In yet another decision of the Hon'ble Supreme Court in the

case of Sukhdeo Vs. Commissioner Amravati Division,

Amravati & Another(supra), it was held thus:

"3. The Government preserved power under Rule 10(4)(b) to retire government servant which reads thus:

"...any government servant who holds a post in Class III service of the State, either pensionable or non-pensionable, after he has attained the age of fifty-five years". The object of the compulsory retirement is to see that the inefficient and corrupt persons are removed but no sufficient evidence was available to dismiss or remove him from service after enquiry, they are weeded out from service with a view to secure efficiency in public service and to maintain honesty and integrity among the service personnel.........."

In the aforesaid case, earlier settled legal position was

reiterated as below:

(23 of 39) [CW-9576/2011]

"6. It is settled law that when the Government resorts to compulsorily retire a government servant, the entire record of service, particularly, in the last period of service is required to be closely scrutinised and the power would be reasonably exercised......."

29. Keeping in forefront the aforesaid principles generally

applicable in the matter of scrutiny of an action of compulsory

retirement, we shall now deal with the present case.

30. The petitioner entered into judicial service in 1990 as Munsiff

and Judicial Magistrate and continued in service. It is not in dispute

that the petitioner was confirmed and then granted promotion to

the next higher post of Civil Judge (SD) cum Additional Chief

Judicial Magistrate on ad-hoc basis in 1997 and Selection Grade of

RJS in 2002. It is also borne out from the pleadings that in the

year 2003, the petitioner was promoted on ad-hoc basis as

Additional District and Sessions Judge and thereafter, in 2010 on

the recommendations of the High Court, the petitioner was

promoted in the cadre of Rajasthan Higher Judicial Service and

appointed as Additional District and Sessions Judge in that year. It

is also borne out from the pleadings and record of the case that a

communication dated 16.05.2011 was received by the petitioner

from the establishment of the High Court by which Annual

Confidential Report for the year 2009 (12.06.2009 to 31.12.2009)

was communicated and the remarks recorded, "Arrogant and rude".

However, before the petitioner could prefer representation, vide

order dated 24.05.2011, the petitioner was compulsorily retired

from service by invoking Rule 53(1) of the Rules of 1996, which

was conveyed vide communication dated 25.05.2011 along with

draft of Rs. 3,21,297/-. From the pleadings as also the relevant

record produced before us, which we have perused, it is found that

(24 of 39) [CW-9576/2011]

the petitioner's case for compulsory retirement was considered by

the Screening Committee (Higher Judiciary Committee), comprising

of Hon'ble the Chief Justice, Hon'ble Administrative Judge and two

Hon'ble Judges. Relevant part of the recommendations made by the

Screening Committee in respect of petitioner's case reads thus:

"8. Matter regarding consideration of the cases of Judicial Officers in District Judge cadre under Rule 53 of the Rajasthan Civil Services (Pension) Rules, 1996 for compulsory retirement (Special Reports received from Hon'ble Judges) After taking into consideration the entire service record and various entries in ACRs and the special reports of the Hon'ble Inspecting Judges and other materials placed on record, the Committee resolved to recommend that the following officers be retired compulsorily under Rule 53 of the Rajasthan Civil Services (Pension) Rules, 1996:-

1. Shri Ashok Kumar Gupta

2. Shri Harveen Singh Beniwal

3. Smt. Rekha Sharma"

31. The Screening Committee took into consideration the ACR of

the year 2009 for the period from 12.06.2009 to 31.12.2009, which

recorded the remarks, "Arrogant and rude". The remarks of the

Inspecting Judge, for the period from 12.06.2009 to 31.12.2009

are as below:

"As the Inspecting Judge, I have repeatedly been informed by the District and Session Judge, Bundi, Mr. V.K. Mathur about the difficulties created by Mr. Ashok K. Gupta. On my inspection also I had received complaints about Mr. Gupta's functioning as a judge and about his behavior. In my personal interaction, I find Mr. Gupta as arrogant and rude. Considering the complaints received about him, I do not consider him to be 'good', but rate him to be 'average'."

Not only this, the Screening Committee further took into

consideration another remarks in the ACR of 2010 (01.01.2010 to

30.04.2010) which were as below:

(25 of 39) [CW-9576/2011]

"2010-I: Arrogant, rude in his behaviour. Is he an efficient Judicial Officer-No. He is contentious, proud and ill-mannered. Doubtful integrity. The officer tries to foment trouble for his superior. He instigates the Lawyers against the other judicial officers. Average." "2010-II: Integrity doubtful. Average."

Part-I of ACR of 2010 related to period from 01.01.2010 to

30.04.2010 whereas Part-II of ACR of 2010 related to period from

01.05.2010 to 22.12.2010. The remarks for the period from

01.05.2010 to 22.12.2010 were recorded as 'Good' by the

Reporting Officer. Records show that observations of the Inspecting

Judge could not be recorded and when it were placed before

Administrative Judge, though after compulsory retirement, the

petitioner was graded as Average Officer and thereafter by the

Accepting Authority, who categorically recorded "Integrity doubtful".

32. The record and consideration of petitioner's case further

revealed that special report was also submitted by the Inspecting

Judge. Special report of the Inspecting Judge recorded as below:

"I have called for report of afore named judicial officer and have also talked to District Judge, Kota and from my own resources, have tried to find out his functioning as Judicial Officer. On inspection of the records, a list has come before me discloses that the Officer deliberately withholds bail applications filed U/Ss 438 & 439, CrPC, decides after inordinate delay, for which there are underlined reasons behind it. For instance, I would like to enclose herewith in the form of Schedule-A that certainly discloses and creates doubt in my mind in regard to discharge of duties by Judicial Officer and that apart from report called from the District Judge Kota, it has come to my notice and discloses that he has taken pains only to decide uncontested matters and even such cases also, where the witnesses have been declared hostile, that reflects his way of functioning in totality.

The members of Bar also complained about his rudeness and misbehaviour with them. It has been brought to my notice that he used to pass contradictory orders. After taking note of comments from District Judge, Kota and information gathered by me, I do feel that his integrity appears to be seriously doubtful as is reflected from his working and he does not deserve to continue any further."

                                             (26 of 39)               [CW-9576/2011]



33.   The     aforesaid   specific     material       in    the   form   of   Annual

Confidential Report and special report was considered by the

Screening Committee along with the entire service record of the

petitioner. Adverting to the records of the recent past prior to the

date of consideration, particularly the remarks relating to integrity

of the petitioner, the Screening Committee opined that the

petitioner was required to be compulsorily retired in public interest.

The Full Court in its meeting held on 22.05.2011 resolved to

accept the recommendations of the Screening Committee (Higher

Judiciary Committee) recommending compulsory retirement of the

petitioner.

34. From the aforesaid narration of facts and the disclosure of

material available on record, it is vividly clear that while considering

petitioner's case for compulsory retirement, entire service record of

the petitioner was looked into, the relevant record of the immediate

past prior to consideration of petitioner's case for compulsory

retirement was closely scrutinised by the Screening Committee

comprising of the Chief Justice and three Judges and thereafter,

approved by the Full Court. It is further borne out from the record

that in more than one ACRs recorded by two different Inspecting

Judges, the petitioner's integrity was found to be doubtful. Thus,

the complete material on record was taken into consideration to

compulsorily retire the petitioner in public interest. The material on

the basis of which it was resolved to compulsorily retire the

petitioner in public interest is not irrelevant. Moreover, it cannot be

said that while considering the case of the petitioner for compulsory

retirement, entire service record of the petitioner was not seen.

(27 of 39) [CW-9576/2011]

Further, while considering case of the petitioner as to whether his

continuance in service is desirable, various adverse entries

including entries relating to integrity of the petitioner were kept in

mind by the Screening Committee as also by the Full Court. It,

therefore, cannot be said that there was no material warranting

compulsory retirement of the petitioner, he being a judicial officer.

35. While considering the case relating to compulsory retirement

of a judicial officer, their Lordships in the Hon'ble Supreme Court in

the case of Nawal Singh Vs. State of U.P. & Another (2003) 8

SCC 117 observed thus:

"2. ........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, the 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 the order of compulsory retirement is based on the subjective satisfaction of the authority."

A Division Bench of this Court in the case of Gavendra Singh

Chauhan Vs. State of Rajasthan & Another(supra) held as

below:

"This fact cannot be ruled out that judicial service is not a service in the sense of employment and as is commonly understood Judges are discharging their functions 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. There is no manner of doubt that the 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."

(28 of 39) [CW-9576/2011]

The Hon'ble Supreme Court, in another decision in the case of

R.C. Chandel Vs. High Court of Madhya Pradesh & Another

(2012) 8 SCC 58, held as below:

"29. 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, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and the 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."

36. In the case of Pyare Mohan Lal Vs. State of Jharkhand &

Others(supra), relating to compulsory retirement of a judicial

officer on the recommendations of the High Court, one of the

submissions made before the Hon'ble Supreme Court to support the

order of compulsory retirement was that concerned judicial officer

did not enjoy good reputation as several entries relating to his

integrity being doubtful had been recorded and therefore, it was

contended that he could not claim himself to be fit to be retained in

judicial service. The Hon'ble Supreme Court relied upon its earlier

decision in the case of State of U.P. & Others Vs. Vijay Kumar

Jain (2002) 3 SCC 641, wherein it was held that even a single

adverse entry withholding integrity within a period of 10 years of

(29 of 39) [CW-9576/2011]

the passing of the order of compulsory retirement was held to be

sufficient to compulsorily retire the judicial officer. In Para 22 of the

aforesaid judgment in Pyare Mohan Lal Vs. State of Jharkhand

& Others(supra), it was held thus:

"22. In Vijay Kumar Jain this Court held that the vigour or sting of an entry does not get wiped out, particularly, while considering the case of employee for giving him compulsory retirement, as it requires the examination of the entire service records, including character rolls and confidential reports. "Vigour or sting of an adverse entry is not wiped out", merely it relates to the remote past. There may be a single adverse entry of integrity which may be sufficient to compulsorily retire the government servant."

37. In the present case, though the petitioner has laid attack on

the manner in which the adverse remarks were recorded in his ACR

for the year 2010, none of the grounds in the writ petition are

based on any personal malice against the petitioner by those

Inspecting Judges, who had recorded adverse remarks, particularly

remarks relating to integrity of the petitioner. Nor any material has

been placed in the petition or in any of the successive affidavits

(five in number) as also rejoinder of the petitioner that for any

particular reason, any of the Inspecting Judges, who had recorded

ACRs for the years 2009 and 2010, had any bias or nurtured ill will

against the petitioner.

38. It has been repeatedly held that compulsory retirement in

public interest is not punitive action and cannot be regarded as

punishment. It has equally been settled that there is limited scope

of interference against the order of compulsory retirement. The

observations made by the Hon'ble Supreme Court in plethora of

decisions including those, which have been considered hereinabove,

lay down that principles of natural justice have no application and

(30 of 39) [CW-9576/2011]

even uncommunicated adverse remarks could be taken into

consideration for compulsory retirement. The order of compulsory

retirement could be challenged on the grounds that either it is

arbitrary or mala fide. Moreover, it has been repeatedly held that

more importance should be attached to the confidential records of

the later years and that much importance should not be attached to

the records relating to earlier years or to the early years of service,

though entire service record is required to be taken into

consideration. It has also been held that more than ordinary value

should be attached to the confidential reports pertaining to the

years immediately preceding such consideration and whatever

value, the confidential reports of earlier years may possess, those

pertaining to later years are not only of direct relevance, but also of

utmost importance. In view of above, one of the arguments raised

by the petitioner that uncommunicated adverse remarks or special

report regarding petitioner's conduct, behaviour and integrity were

taken into consideration, therefore, fails.

39. The petitioner has raised an issue with regard to the manner

in which the adverse remarks, particularly remarks relating to

integrity in the ACR of 2010 (Part-I and Part-II both) were

recorded. One of the main contention of learned counsel for the

petitioner was that while the Reporting Officer had given good

remarks and did not write anything adverse on the aspect of

integrity, the Inspecting Judge, on his own and without any basis as

also contrary to the reports of the Reporting Officer, recorded an

unjustified entry of doubtful integrity. In the case of Baikuntha

Nath Das & Another Vs. Chief District Medical Officer,

Baripada & Another(supra), it was emphasised that the superior

(31 of 39) [CW-9576/2011]

officer may make certain remarks while assessing the work and

conduct of the subordinate officer based on his personal supervision

or contact and it would be indeed difficult, if not impossible, to

prove by positive evidence that a particular officer is dishonest but

those who have had the opportunity to watch the performance of

the said officer from close quarters are in a position to know the

nature and character, not only of his performance but also of the

reputation that he enjoys. It was observed thus:

"15. The respondent, M.E. Reddy belonged to Indian Police Services. He was retired compulsorily under Rule 16(3) of All India Service (Death-cum- Retirement) Rules, 1958-corresponding to F.R. 56 (j). The contention of the respondent was that the order was passed on non-existent material inasmuch as at no time were any adverse remarks communicated to him. His contention was that had there been any adverse entries they ought to have been communicated to him under the rules. The said contention was dealt with in the following words: (SCC p.24, para 17) "... This argument, in our opinion, appears to be based on a serious misconception. In the first place, under the various rules on the subject it is not every adverse entry or remark that has to be communicated to the officer concerned. The superior officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact. Some of these remarks may be purely innocuous, or may be connected with general reputation of honesty or integrity that a particular officer enjoys. It will indeed be difficult if not impossible to prove by positive evidence that a particular officer is dishonest but those who have had the opportunity to watch the performance of the said officer from close quarters are in a position to know the nature and character not only of his performance but also of the reputation that he enjoys".

40. Further, in the case of Nawal Singh Vs. State of U.P. &

Another(supra), it was emphasised that it was not possible to

prove by positive evidence the basis for doubting integrity of the

(32 of 39) [CW-9576/2011]

judicial officer. The petitioner could not prove on record by any

material to show that the Inspecting Judges had any bias against

the petitioner and actuated by such bias alone, without any

material, adverse entries were made. The Inspecting Judges are

presumed to have various inputs, informations, not only regarding

the behaviour of a judicial officer but also regarding integrity of the

judicial officer. On more than one occasion, firstly in the ACR of

2010 and thereafter, in the special report of the Inspecting Judge,

the integrity of the petitioner was found to be doubtful in nature.

Though belatedly, ACR of 2010 was also approved by the Accepting

Officer (before the Hon'ble Chief Justice), who also recorded that

integrity was doubtful. Though some irregularities in recording of

ACRs have been pointed out, in the absence of there being any

allegation of personal bias against the Inspecting Judges and that

they are presumed to be in a position to have inputs from various

sources with regard to integrity aspect of a judicial officer, only on

the basis of certain stated irregularities, we are not inclined to hold

that the remarks regarding integrity of the petitioner ought to be

ignored while considering his case for compulsory retirement by the

Screening Committee and when the occasion arose for

consideration by the Full Court.

41. The petitioner has raised serious issue with regard to factual

correctness of the special report submitted by the Inspecting Judge,

which was one of the relevant materials considered by the

Screening Committee to recommend compulsory retirement of the

petitioner. In this regard, it is found that the Inspecting Judge has

prepared a detailed note/report not only based on various inputs

but also records. Since the bona fides of the Inspecting Judge in

(33 of 39) [CW-9576/2011]

recording the report are not under challenge, this Court, while

exercising it power under Article 226 of the Constitution of India,

would not go into the sufficiency of the material, nor would act as

an appellate authority to substitute its own opinion in the place of

that recorded by the Inspecting Judge, which are not only based on

certain material but that material is also relevant and could not be

termed as extraneous or irrelevant.

42. Various decisions, which have been relied upon by the

petitioner to assail the correctness of the entries made in the

confidential reports as also the opinion formed by the Inspecting

Judge, as contained in the special report, have consistently held

that principles of natural justice have no place and that could not

be made a basis to assail the order of compulsory retirement. It

has also been held that the scope of judicial review, when the

record of an officer is examined by the Full Court, is very limited.

However, the petitioner has relied upon those decisions to make out

a case of interference, particularly in the matter of recording

various ACRs, especially the recording of observations doubting

integrity of the petitioner.

43. In the case of S. Maheswar Rao Vs. State of Orissa &

Another(supra), on facts, it was found that though against the

remarks, representations were made but that were not taken into

consideration. It can, however, be noticed that the Hon'ble Supreme

Court in the case of Baikuntha Nath Das & Another Vs. Chief

District Medical Officer, Baripada & Another(supra) and

thereafter, in many decisions, has repeatedly held that an order of

compulsory retirement could not be challenged solely on the ground

that it is based on uncommunicated adverse remarks.

(34 of 39) [CW-9576/2011]

44. In the case of Registrar General, High Court of Patna Vs.

Pandey Gajendra Prasad & Others(supra), having perused the

record and recorded a finding though holding that the evaluation of

the conduct by the Standing Committee and the Full Court could

not be said to be arbitrary, capricious or irrelevant so as to warrant

interference, the Hon'ble Supreme Court emphasised upon noticing

urgent need for reforms in the matter of recording of ACRs so as to

infuse objectivity and standardisation.

45. In the case of Nand Kumar Verma Vs. State of Jharkhand

& Others(supra), on facts, it was found that the order of

compulsory retirement was based on only selective consideration of

the service record for certain years while making extracts of the

contents of ACRs and certain discrepancies were noted. The note

containing summary of the ACRs was not found to be strictly

reflecting the actual entries made and it was concluded that

subjective satisfaction of the High Court was not based on sufficient

or relevant material. However, the principle applicable with regard

to limited scope of interference was reiterated as below:

"31. We are conscious of the fact that there is very limited scope of judicial review of an order of premature retirement from service. As observed by this Court in High Court of Madras v. R. Rajiah (1988) 3 SCC 211 that: (SCC pp. 221-22, para 21) "21. ... when the High Court takes the view that an order of compulsory retirement should be made against a member of the subordinate judicial service, the adequacy or sufficiency of such materials cannot be questioned, unless the materials are absolutely irrelevant to the purpose of compulsory retirement."

32. We also add that when an order of compulsory retirement is challenged in a court of law, the court has the right to examine whether some ground or material germane to the issue exists or not. Although, the court is not interested in the sufficiency of the material upon which the order of compulsory retirement rests."

(35 of 39) [CW-9576/2011]

On facts also, in that case, it was noticed that there was no

evidence to show that there was such a deterioration in the quality

of the work or integrity that the officer deserved to be compulsorily

retired whereas in the present case, as is reflected from the record,

the integrity of the petitioner was found to be doubtful not by one

but by two Inspecting Judges and later on, also recorded by the

Accepting Authority.

46. In the case of M.S. Bindra Vs. Union of India &

Others(supra), on facts, the conclusion reached regarding the

officer therein was found to be without any material.

However, legal position as held in the case of Union of India

Vs. Col. J.N. Sinha and Another (1970) 2 SCC 458 was noticed

that if the appropriate authority forms the requisite opinion bone

fide, its opinion cannot be challenged before the courts though it is

open to an aggrieved party to contend that the requisite opinion

has not been formed or that it is based on collateral grounds or that

it is an arbitrary decision. Thus, lack of material was the basis to

hold the action as arbitrary, which is not the case here.

47. In the case of State of U.P. Vs. Yamuna Shanker Misra &

Another(supra), the importance of writing ACRs was highlighted.

It was observed that recording of ACRs should be fair, objective and

dispassionate.

48. In the case of Brijesh Purohit Vs. The High Court of

Judicature for Rajasthan at Jodhpur(supra), a Division Bench

of this Court at Principal Seat, Jodhpur examined the correctness of

the decision of compulsory retirement. On facts, it was found that

without any complaint or adverse material, goods remarks were

(36 of 39) [CW-9576/2011]

downgraded and later on, it was further found that due to illegal

advice by the office of the Registry, ACRs of approximately 150

judicial officers of all the ranks were downgraded by entering the

same stereo typed adverse remarks in the ACRs against the

integrity of those officers without any justification or reason. On

facts, it was found that neither the Reporting Officer, nor the

Inspecting Judge had entered remarks with regard to doubtful

integrity, but such remarks were recorded by the Accepting

Authority.

49. In the case of Ram Ekbal Sharma Vs. State of Bihar &

Another(supra), it was propounded that even though the order of

compulsory retirement is couched in innocuous language without

making any imputations against the government servant, who is

directed to be compulsorily retired from service, the Court, if

challenged, in appropriate case can lift the veil to find out whether

the order is based on any misconduct of the government servant

concerned or the order has been made bona fide and not with any

oblique or extraneous purposes and mere form of the order in such

cases cannot deter the Court from delving into the basis of the

order if the order in question is challenged by the concerned

government servant. On facts of that case, it was found that the

basis of the order of compulsory retirement from service was not in

public interest but mere camouflage being couched in innocuous

terms and in fact, made by way of punishment.

50. In the case of Rajesh Gupta Vs. State of Jammu and

Kashmir & Others(supra), compulsory retirement of a Soil

Conservation Assistant in Agricultural Department of the

Government was challenged and the allegations of amassing

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disproportionate assets were made basis to doubt integrity. In the

factual enquiry, it was found that the officer had acted in a casual

and haphazard manner in the maintenance of records and the

negligence could not per se lead to the conclusion that the

appellant therein was acting with an ulterior motive. Therefore, on

facts, the order of compulsory retirement was found to be

unsustainable in law.

51. In the case of High Court of Judicature at Patna Vs. Ajay

Kumar Srivastava & Others(supra), the order of compulsory

retirement was found to be a camouflage and a cloak to get rid of

an officer without holding due and proper departmental enquiry on

serious allegations of misconduct.

52. In the case of High Court of Punjab & Haryana through

R.G. Vs. Ishwar Chand Jain & Another(supra), the order of

premature retirement was challenged. On facts, the inspection

report of the Inspecting Judge was found to be not acceptable

because of various contradictions.

53. Reliance on the decision in the case of Baidyanath

Mahapatra Vs. State of Orissa & Another(supra) is

misconceived as the correctness of the view taken in the aforesaid

decision was considered by the Larger Bench of the Hon'ble

Supreme Court in its subsequent decision in the case of Baikuntha

Nath Das & Another Vs. Chief District Medical Officer,

Baripada & Another(supra) and the Hon'ble Supreme Court

clearly held that principles of natural justice are having no role to

play and an order of compulsory retirement could not be assailed

on the ground that while considering the case of compulsory

retirement, uncommunicated adverse remarks were taken into

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consideration. Therefore, to that extent, decision in the case of

Baidyanath Mahapatra Vs. State of Orissa & Another(supra)

was overruled by the Hon'ble Supreme Court in the case of

Baikuntha Nath Das & Another Vs. Chief District Medical

Officer, Baripada & Another(supra).

54. In the case of Swaran Singh Chand Vs. Punjab State

Electricity Board and Others(supra), the principle that

compulsory retirement could be ordered without affording any

opportunity of representation was held permissible though it was

held that the Court could examine whether it is punitive or

simplicitor. On facts, it was found that the compulsory retirement

was not in accordance with the guidelines, which in the opinion of

the Court, were required to be followed and non-compliance would

amount to malice in law. That is not the case here. Present is not

a case where while considering the case of the petitioner for

compulsory retirement, any guidelines in the matter of

consideration of cases for compulsory retirement have been

violated. Further, it is not a case where the order of compulsory

retirement casts stigma as such. It is been settled in various

decisions that the power of compulsory retirement could be used to

weed out not only those who have outlived their utility, but also in

cases where the integrity itself becomes doubtful.

55. The legal position being well settled with regard to the limited

scope of judicial review, there being material available on record in

the form of reports of two Inspecting Judges doubting integrity of

the petitioner and also accepted by the Accepting Authority,

separately recording that integrity is doubtful and that material

having been considered along with entire service record of the

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petitioner by the Screening Committee and approved by the Full

Court, in the absence of there being any allegation of mala fide

against the officials involved in the exercise of recording ACRs,

special report and consideration through collective decision making,

we are not inclined to interfere with the decision of compulsory

retirement of the petitioner.

56. In the result, writ petition is, accordingly, dismissed.

57. Records of the case be returned in sealed envelop to Registrar

(Judicial), Rajasthan High Court, Jodhpur.

(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),J

Manoj Narwani..

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