REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5790 OF 2012
(Arising out of SLP(C) No. 1884 of 2007)
R.C. Chandel ……
Appellant
Vs.
High Court of M.P. & Anr.
…… Respondents
JUDGMENT
R.M. LODHA, J.
Leave granted.
2. On 13.09.2004, the appellant, who was working on the post of
District and Sessions Judge, Punna was compulsorily retired from the
service in the public interest by the Government of Madhya Pradesh (for
short, ‘the Government’) on the request of the Madhya Pradesh High Court
(for short, ‘High Court’). The order of compulsory retirement was issued
by the Government in exercise of its power under amended Rule 56(2)(a) of
the Fundamental Rules, as made applicable in the State of Madhya Pradesh,
Rule 14 of the Madhya Pradesh Higher Judicial Service (Recruitment and
Service Conditions) Rules, 1994 (for short, ‘1994 Rules’), Rule 42(1)(b) of
the Madhya Pradesh Civil Services (Pension) Rules, 1976 (for short, ‘1976
Rules’) and Rule 1-A of Madhya Pradesh District and Sessions Judges (Death-
cum-Retirement Benefits) Rules, 1964 (for short, ‘1964 Rules’). In lieu of
notice of three months, it was directed in the order that the appellant
shall be entitled to three months’ salary and allowances which he was
receiving prior to his retirement.
3. The appellant challenged the above order of compulsory
retirement by filing a writ petition before the High Court. The Single
Judge of that Court by his order dated 20.04.2006, allowed the writ
petition; quashed the order of compulsory retirement dated 13.09.2004 and
directed that he be reinstated with all consequential benefits.
4. The High Court on the administrative side challenged the order
of Single Judge in writ appeal. The Division Bench of that Court on
consideration of the entire matter held that the challenge to the order of
compulsory retirement was ill-founded and, accordingly, set aside the order
of the Single Judge vide its judgment dated 23.11.2006. It is from this
order that the appellant has preferred this appeal by special leave.
5. The appellant was selected in the higher judicial service of
Madhya Pradesh by direct recruitment. He joined the judicial service as an
Additional District Judge on 17.10.1979. On 26.06.1985, he was confirmed as
a District Judge. The appellant was awarded lower selection grade on
07.09.1990 with effect from 24.03.1989. He was awarded super time scale
in May, 1999 and above super time scale in 2002. As noted above, by the
order dated 13.09.2004, the appellant was compulsorily retired in public
interest.
6. We have heard Mr. Rohit Arya, learned senior counsel for the
appellant and Mr. Ravindra Shrivastava, learned senior counsel for the High
Court on the administrative side.
7. Mr. Rohit Arya, learned senior counsel for the appellant
vehemently contended that the Division Bench was not at all justified in
setting aside the judgment and order of the Single Judge. The observations
made by the Division Bench in the impugned order and the findings recorded
therein are founded on incorrect and misleading facts. The service record
of the appellant speaks otherwise.The appellant has been largely assessed
in his ACRs ‘Good’ or ‘Very Good’. He highlighted that the appellant was
confirmed as District Judge in 1985, he was awarded lower selection grade
in 1990, he was given super time scale in 1999 and above super time scale
in 2002 on merits and, on the basis of his judicial work he was also
recommended for elevation as a High Court Judge by the High Court
collegium in March, 2004.
8. Learned senior counsel for the appellant submitted that
compulsory retirement of the appellant on the basis of an adverse entry
recorded in 1989 and two subsequent adverse entries for 1993 and 1994 was
wholly unjustified. As regards 1989 adverse entry, learned senior counsel
submitted that the appellant was awarded lower selection grade in 1990 and,
therefore, the said entry had lost its efficacy. In respect of entries
recorded in 1993 and 1994, learned senior counsel submitted that the said
entries also lost their significance since the appellant was awarded super
time scale in 1999 and above super time scale in 2002. In between in 2001,
he was allowed to continue in service. Moreover, learned senior counsel
would submit that the adverse remarks recorded in 1993 and 1994 were
challenged by the appellant on the judicial side of the High Court. The
Single Judge of that Court accepted the appellant’s challenge and expunged
these remarks. The High Court on administrative side challenged the order
of the Single Judge in writ appeal. The Division Bench of the High Court
although set aside the order of the Single Judge but observed that 1993 and
1994 entries shall not be read adverse to the appellant for all times to
come.
9. Learned senior counsel referred to the guidelines dated
22.08.2000 issued by the Government and submitted that in view thereof no
order of compulsory retirement could be passed on the basis of incapacity
if the officer was promoted within the last five years and during that
period his performance remained satisfactory. He submitted that throughout
his work, the appellant achieved the norms for disposal of cases fixed by
the High Court and his reputation and integrity as well as the judicial
performance was found to be good and it is because of that that he got
lower selection grade and super time scale from time to time. Learned
senior counsel, thus, submitted that the Single Judge of the High Court was
fully justified in interfering with the order of compulsory retirement
after dealing with each and every complaint made against the appellant and
none of these complaints was found meritorious justifying compulsory
retirement of the appellant. Learned senior counsel for the appellant, in
support of his arguments, heavily relied upon a recent decision of this
Court in Nand Kumar Verma v. State of Jharkhand and others[1].
10. On the other hand, Mr. Ravindra Shrivastava, learned senior
counsel for the High Court on administrative side (respondent no.1) stoutly
defended the impugned judgment. He submitted that the High Court
recommended the compulsory retirement of the appellant to the Government as
he was not found fit for continuation in judicial service in public
interest. While making such recommendation the Full Court considered the
entire service record of the appellant. Mr. Ravindra Shrivastava, learned
senior counsel referred to ACRs of the appellant recorded for the years
1982, 1989, 1993, 1994, 1997 and 1998 and submitted that the decision of
the Full Court to compulsorily retire the appellant cannot be said to be
unjustified.
11. Learned senior counsel for the respondent no. 1 placed reliance
upon a decision of this Court in Rajendra Singh Verma (Dead) Through LRs.
and others v. Lieutenant Governor (NCT of Delhi) and others[2].
12. Rule 56(2) of the Fundamental Rules provides that a government
servant (read judicial officer) may, in the public interest, be retired at
any time after he has completed 20 years’ qualifying service, or on his
attaining the age of 50 years, whichever is earlier without assigning any
reason by giving him a notice in writing. The notice period is three
months. However, he may be retired forthwith and on such retirement he is
entitled to claim a sum equivalent to the amount of his pay plus allowances
for the period of notice at the same rates at which he was drawing them
immediately before retirement or, as the case may be, for the period by
which such notice falls short of three months. Sub-rule 1-A added to 1964
Rules provides that with regard to age of compulsory retirement, the
permanent District and Sessions Judge shall be governed by the provisions
of Fundamental Rule 56. Rule 42(1)(b) of the 1976 Rules provides that
the appointing authority may in the public interest require a government
servant (read judicial officer) to retire from service at any time after he
has completed 20 years’ qualifying service or on his attaining the age of
50 years whichever is earlier by giving three months’ notice in Form 29
provided that he may be retired forthwith and on such retirement he shall
be entitled to claim a sum equivalent to the amount of his pay plus
allowances for the period of the notice at the same rate at which he was
drawing immediately before his retirement or, for the period by which such
notice falls short of three months, as the case may be. Rule 14(1) of the
1994 Rules provides that the age of superannuation of a member of the
Madhya Pradesh Higher Judicial Service shall ordinarily be 60 years,
provided he is found fit and suitable to continue after 58 years in service
of the High Court. Sub-rule (2) makes a provision that without prejudice to
the provisions contained in Rule 56(3) of the Fundamental Rules and Rule
42(1)(b) of the 1976 Rules, a member of the service not found fit and
suitable shall be compulsorily retired on his attaining the age of 58
years.
13. Article 235 of the Constitution vests in the High Court the
control over the subordinate judiciary within the State. It reads as
follows :
“Control over subordinate courts.—The control over district courts
and courts subordinate thereto including the posting and promotion
of, and the grant of leave to, persons belonging to the judicial
service of a State and holding any post inferior to the post of
district judge shall be vested in the High Court, but nothing in this
article shall be construed as taking away from any such person any
right of appeal which he may have under the law regulating the
conditions of his service or as authorizing the High Court to deal
with him otherwise than in accordance with the conditions of his
service prescribed under such law.”
14. In Samsher Singh v. State of Punjab and another[3], a seven-
Judge Bench of this Court considered the ambit and scope of the word
“control” and while elaborating the powers included in the High Courts
with regard to control over subordinate judiciary within its respective
state, inter alia, exposited the position that such power included pre-
mature or compulsory retirement of Judges of the district courts and of
subordinate courts.
15. In Chandra Singh and others v. State of Rajasthan and
another[4], the above position laid down by this Court in Samsher Singh 3
has been reiterated.
16. The above position laid down by this Court in the cases of
Samsher Singh3 and Chandra Singh4 has been reiterated in a recent decision
of this Court in Rajendra Singh Verma2 . In paragraph 82 (Pg. 43) of the
Report, this Court in Rajendra Singh Verma2 stated as follows :
“82. As explained by this Court in Chandra Singh v. State of
Rajasthan [(2003) 6 SCC 545], the power of compulsory retirement
can be exercised at any time and that the power under Article 235
in this regard is not in any manner circumscribed by any rule or
order. What is explained in the said decision by this Court is that
Article 235 of the Constitution of India enables the High Court to
assess the performance of any judicial officer at any time with a
view to discipline the black sheep or weed out the dead wood, and
this constitutional power of the High Court cannot be circumscribed
by any rule or order.”
17. Following a decision of this Court in High Court of Judicature
at Bombay Through Its Registrar v. Shirishkumar Rangrao Patil and
another[5] , this Court in Rajendra Singh Verma2 reiterated that the High
Court had to maintain constant vigil on its subordinate judiciary.
18. A three-Judge Bench of this Court in All India Judges’
Association (2) and others v. Union of India and others[6] has emphasized
that the benefit of increase of retirement age to 60 years shall not be
available automatically to all judicial officers irrespective of their past
record of service and evidence of their continued utility to the judicial
system. The benefit is available to only those who, in the opinion of the
respective High Courts, have a potential for continued useful service. The
Bench said, “It is not intended as a windfall for the indolent, the infirm
and those of doubtful integrity, reputation and utility”.
19. That power of the High Court to recommend to the Government
to compulsorily retire a judicial officer on attaining the required length
of service or requisite age and consequent action by the Government on such
recommendation are beyond any doubt.
20. The appellant, as noted above, was selected in Madhya Pradesh
Higher Judicial Service in 1979 by way of direct recruitment. At the time
of issuance of the order of compulsory retirement on 13.09.2004 he had
completed 25 years or so in judicial service. The available materials show
that for the period from 01.04.1981 to 31.03.1982, the appellant was given
grade ‘D’ (Average).
21. In 1988-89, the appellant was assessed “D”. ACR for that year
also records that he never enjoyed clean reputation although no such
complaint was received in writing. It also records that his quality of
judgments and orders was not satisfactory.
22. For the period ending 31.03.1991, the appellant was graded “C”
(Good) but it records, “the descriptive report of the then Chief Justice
dated 28.06.1991 is that no inspection of Betul District Judge was made,
however, the appellant was reported to be an average judicial officer”.
23. For the period ending 31.03.1992, the appellant has been given
grade “D” (Average).
24. For the period ending 31.03.1993, the appellant has been
graded “E” (Poor). Inter alia, the remarks read, “Inspection note shows
that the quality of his performance is poor. His disposals were below
average, his reputation was not good”.
25. For the period ending 31.03.1994, the appellant has been
graded “E” (Poor). The entry reads, “His performance qualitatively and
quantitatively has been poor. The officer does not enjoy good reputation”.
26. The questions that fall for consideration are: whether the
recommendation made by the High Court on the basis of unanimous opinion to
the Government for compulsory retirement of the appellant and the order of
compulsory retirement issued by the Government suffer from any legal flaw?
Is the order of compulsory retirement so arbitrary or irrational that
justifies interference in judicial review? Is the view of the Division
Bench upholding the order of appellant’s compulsory retirement so erroneous
warranting interference by this Court in an appeal under Article 136 of the
Constitution of India?
27. In Rajendra Singh Verma2 , this Court restated what has been
stated in earlier decisions that compulsory retirement from service is
neither dismissal nor removal; it differs from both of them, in that it is
not a form of punishment prescribed by the rules and involves no penal
consequences inasmuch as the person retired is entitled to pension and
other retiral benefits proportionate to the period of service standing to
his credit. An order of compulsory retirement being not an order of adverse
consequence, principles of natural justice have no application. This Court
took into consideration a long line of cases including State of U.P. and
another v. Bihari Lal[7], Union of India v. V.P. Seth and another[8],
Baikuntha Nath Das and another v. Chief District Medical Officer,
Baripada and another[9], Baidyanath Mahapatra v. State of Orissa and
another[10], Union of India v. Col. J.N. Sinha and another[11], All India
Judges’ Association (1) v.
Union of India and others[12] and All India Judges’ Association (2)6 and
culled out the legal position in paragraph 183 (Pg. no. 75) of the Report
as follows :
“183. It is well settled by a catena of decisions of this Court that
while considering the case of an officer as to whether he should be
continued in service or compulsorily retired, his entire service
record up to that date on which consideration is made has to be
taken into account. What weight should be attached to earlier
entries as compared to recent entries is a matter of evaluation, but
there is no manner of doubt that consideration has to be of the
entire service record. The fact that an officer, after an earlier
adverse entry, was promoted does not wipe out earlier adverse entry
at all. It would be wrong to contend that merely for the reason that
after an earlier adverse entry an officer was promoted that by
itself would preclude the authority from considering the earlier
adverse entry. When the law says that the entire service record has
to be taken into consideration, the earlier adverse entry, which
forms a part of the service record, would also be relevant
irrespective of the fact whether the officer concerned was promoted
to higher position or whether he was granted certain benefits like
increments, etc.”
28. Few other features based on service record of the appellant
highlighted in the counter filed by the respondent no. 1 in opposition to
the writ petition as well as in response to the special leave petition
before this Court may be noticed. The appellant was informed of his having
been assessed in grade “D” for the period 01.04.1981 to 31.03.1982 by
communication dated 15.09.1982. The said adverse grading was not assailed
by the appellant and it remained on the record as it is. The appellant was
also intimated on 06.11.1989 about the adverse remarks recorded in his ACR
for the period 1988-89 that he never enjoyed clean reputation and that his
quality of judgments and orders was not satisfactory. The appellant made
representation against the above remarks but the same was rejected and they
hold the field as it is. For the period ending 31.03.1992, the appellant
was graded “D” and that grading remains as it is.
29. The adverse remarks recorded in the ACR for the period ending
on 31.03.1993 and 31.03.1994, were communicated to the appellant. He made
two separate representations for expunging the adverse remarks recorded for
these years. His representations were rejected by the then Chief Justice
on 27.08.1994 and the appellant was informed of the said rejection on
30.08.1994. Despite rejection of the two representations made by the
appellant, he again made two representations to the Chief Justice for
expunction of these adverse remarks. These representations were also
rejected and the appellant was communicated of the same on 05.01.1995. The
representations made by the appellant having been rejected twice by the
Chief Justice, the appellant yet again made representation on 02.08.1995
for expunction of these remarks. This representation also came to be
rejected by the Chief Justice on 21.08.1995 by observing that the remarks
in the ACR for the above period do not call for any modification. The
appellant sought administrative review of the decision taken by the Chief
Justice and the administrative review was also rejected by the Chief
Justice on 06.01.1996. The appellant then filed a writ petition (No. 413 of
1996) on the judicial side of the High Court. The Single Judge of that
Court allowed the appellant’s writ petition vide his judgment and order
dated 18.10.1996 and quashed the adverse remarks in the appellant’s ACR for
the years ending on 31.03.1993 and 31.03.1994. The High Court on
administrative side filed LPA against the judgment and order dated
18.10.1996. The Division Bench of that Court allowed the LPA and set aside
the judgment and order of the Single Judge dated 18.10.1996. While doing
so the Division Bench in its judgment and order dated 25.02.1997 observed
in para 69 as follows :
“69. Before parting with this case in all fairness, we consider
it necessary to observe that the adverse remarks on the reputation
of respondent conveyed to him in the relevant years should not haunt
him all through his judicial career and hamper his prospects for all
times. The above remarks cannot be read to his prejudice in future
if he shows improvement in his work and performance and is able to
achieve the requisite grade for being admitted to higher Selection
Grade. The very purpose of communicating adverse remarks is not to
condemn an officer but to caution him at the right time so as to
give chance of improvement.”
30. Against the judgment and order dated 25.02.1997 passed by the
Division Bench, the appellant filed a special leave petition before this
Court but that was dismissed on 28.04.1997. Thus, advance remarks for
the period ending 31.03.1993 and 31.03.1994 remain as it is.
31. From the counter affidavit filed by the respondent no. 1 it
also transpires that the benefit of super time scale was not given to the
appellant as soon as it became due. Rather, the administrative committee
in its meeting held on 25.03.1995, on consideration of the case of the
appellant for grant of benefit of super time scale, deferred his case with
remarks, “his work performance and conduct will be kept under watch”. The
view of the administrative committee was accepted by the Full Court in its
meeting held on 29.04.1995. The appellant’s case for grant of super time
scale was again considered by the Full Court in the subsequent year 1996
and the Full Court in its meeting held on 20/21.04.1996 found that the
appellant was not suitable for grant of super time scale. It was only in
1999 that the appellant was given super time scale and 2002 that he was
granted above super time scale.
32. In 2002, the appellant was warned for claiming false units. His
explanation that there was typing mistake was not found to be credible.
33. From the above, it is clear that the appellant did not have
unblemished service record all along. He has been graded “Average” on
quite a few occasions. He was assessed “Poor” in 1993 and 1994. His
quality of judgments and orders was not found satisfactory on more than one
occasion. His reputation was observed to be tainted on few occasions and
his integrity was not always found to be above board. In 1988-89, the
remark reads, “never enjoyed clean reputation”. In 1993, the remark “his
reputation was not good” and in 1994 the remark “officer does not enjoy
good reputation”, were recorded. His representations for expunction of
these remarks failed. The challenge to these remarks on judicial side was
unsuccessful right upto this Court. In 1993, it was also recorded that
quality of performance of the appellant was poor and his disposals were
below average. In 1994, the remark in the service record states that the
performance of the appellant qualitatively and quantitatively has been
poor. With this service record, can it be said that there existed no
material for an order of compulsory retirement of the appellant from
service? We think not. The above material amply shows that the material
germane for taking decision by the Full Court whether the appellant could
be continued in judicial service or deserved to be retired compulsorily did
exist. It is not the scope of judicial review to go into adequacy or
sufficiency of such materials.
34. It is true that the appellant was confirmed as District Judge
in 1985; he got lower selection grade with effect from 24.03.1989; he was
awarded super time scale in May, 1999 and he was also given above super
time scale in 2002 but the confirmation as District Judge and grant of
selection grade and super time scale do not wipe out the earlier adverse
entries which have remained on record and continued to hold the field. The
criterion for promotion or grant of increment or higher scale is different
from an exercise which is undertaken by the High Court to assess a
judicial officer’s continued utility to the judicial system. In assessing
potential for continued useful service of a judicial officer in the system,
the High Court is required to take into account the entire service record.
Overall profile of a judicial officer is the guiding factor. Those of
doubtful integrity, questionable reputation and wanting in utility are not
entitled to benefit of service after attaining the requisite length of
service or age.
35. That the appellant’s challenge to 1993 and 1994 entries was
unsuccessful right upto this Court is not in dispute. However, learned
senior counsel for the appellant has placed heavy reliance upon the
observations made by the Division Bench in its judgment and order dated
25.02.1997, particularly, paragraph 69 thereof wherein the Division Bench
held that adverse remarks on the reputation in the relevant years should
not haunt him all through his judicial career and hamper his prospects for
all times. We are afraid the above observations by the Division Bench while
upholding the remarks in no manner restricted the power of the Full Court
in taking into consideration these adverse remarks in its exercise to find
out whether or not the appellant should be retained in service after he has
attained the required length of service. The consideration of the
appellant’s case for grant of selection grade and super time scale stood on
different footing. The entire service record and overall profile of a
judicial officer guide the High Court in reaching its satisfaction about
the continuance or otherwise after the judicial officer has attained the
required length of service or age. When the entire service record of a
judicial officer is under consideration, obviously the High Court is alive
to such judicial officer’s having got promotion/s, increments, etc. during
the service.
36. It was argued by the learned senior counsel for the appellant
that the administrative committee-1 had recommended the appellant’s
continuation in service and there was no justification for the Full Court
to take a contrary view. The view of the administrative committee is not
final. It is recommendatory in nature. It is open to the Full Court to
accept the committee’s report or take a different view. In the present
case, the Full Court on the basis of the entire service record of the
appellant formed a unanimous opinion that the appellant must be
compulsorily retired and recommended to the Government, accordingly. On
the basis of the material which existed and which we have referred to
above, it can hardly be said that the recommendation by the Full Court to
the Government for compulsory retirement of the appellant was arbitrary or
based on material not germane for such recommendation.
37. Judicial service is not an ordinary government service and the
Judges are not employees as such. Judges hold the public office; their
function is one of the essential functions of the State. In discharge of
their functions and duties, the Judges represent the State. The office that
a Judge holds is an office of public trust. A Judge must be a person of
impeccable integrity and unimpeachable independence. He must be honest to
the core with high moral values. When a litigant enters the courtroom,
he must feel secured that the Judge before whom his matter has come, would
deliver justice impartially and uninfluenced by any consideration. The
standard of conduct expected of a Judge is much higher than an ordinary
man. This is no excuse that since the standards in the society have
fallen, the Judges who are drawn from the society cannot be expected to
have high standards and ethical firmness required of a Judge. A Judge,
like Caesar’s wife, must be above suspicion. The credibility of the
judicial system is dependent upon the Judges who man it. For a democracy
to thrive and rule of law to survive, justice system and the judicial
process have to be strong and every Judge must discharge his judicial
functions with integrity, impartiality and intellectual honesty.
38. The most shocking and unbecoming conduct of the appellant
highlighted by the respondent no. 1 before the High Court in opposition to
the writ petition and in response to the present appeal is his act to
overreach the administrative decision on the review petition filed by him
before the Chief Justice after his representations for expunction of
adverse remarks for the period ending on 31.03.1993 and 31.03.1994 had been
thrice earlier rejected. The appellant approached Shri R. K. Malaviya,
Member of Parliament and Chairman, House Committee (Rajya Sabha) for his
grievance concerning rejection of his representations for expunction of
remarks for 1993 and 1994. Though the appellant has denied that he ever
approached Shri R.K. Malaviya but to falsify his claim, the learned
senior counsel for the respondent no. 1 placed before us xerox copy of the
letter dated 14.02.1996 written by Shri R.K. Malaviya to Shri H.R.
Bhardwaj, Minister of State for Law, Justice and Company Affairs,
Government of India, New Delhi and the copy of the letter dated 08.03.1996
sent by the Ministry of Law, Justice and Company Affairs (Department of
Justice), Government of India addressed to the Chief Secretary to the
Government of Madhya Pradesh, Bhopal and the Registrar, High Court. The
letter dated 14.02.1996 addressed by Shri R.K. Malaviya to Shri H.R.
Bhardwaj, the then Minister of State for Law, Justice and Company Affairs
reads as follows :
“R.K. Malaviya Off. : 66, PARLIAMENT HOUSE
MEMBER OF PARLIAMENT NEW DELHI – 110001.
CHAIRMAN TEL.: 3017048, 3034699
HOUSE COMMITTEE
(RAJYA SABHA) RES.: 30, CANNING LANE
KASTURBA GANDHI MARG
NEW DELHI -110001
TEL. : 3782895
RES. : 19, TILAK NAGAR, MAIN
ROAD
INDORE (M.P.)
TEL. : 492412, 492588, 495054
14 February 1996
Dear Shri Bhardwaj Ji
Enclosed is a representation of Shri R.C. Chandel, District &
Sessions Judge, Rewa [MP], which is self-explanatory.
I shall be grateful if you kindly get it examined and do the
needful.
Yours sincerely,
[R.K. MALVIYA]
Shri H.R. Bhardwaj,
Minister of State for Law, Justice &
Company Affairs, Government of India,
NEW DELHI.”
39. The forwarding letter sent by the Government of India, Ministry
of Law, Justice and Company Affairs (Department of Justice) dated 8.3.1996
reads as follows :
“No. L-19015/3/96-Jus
Government of India
Ministry of Law, Justice and C.A.
(Department of Justice)
Jaisalmer House, Mansingh Road
New Delhi, the 8/3/96.
1) The Chief Secretary
to the Government of
Madhya Pradesh,
BHOPAL.
2) The Registrar,
Madhya Pradesh High Court,
JABALPUR.
Subject : Reference from Sh. R.K. Malaviya, Member of Parliament and
Chairman, House Committee, Rajya Sabha on representation of
Sh. R.C. Chandel District and Sessions Judge, Rewa (M.P.)
Sir,
I am directed to forward herewith a copy of letter dated
14.2.1996 alongwith its enclosure, received from Shri R.K.
Malaviya, Member of Parliament and Chairman House Committee, Rajya
Saba on the above subject for taking such action as may be
considered appropriate.
Yours faithfully,
(P.N. SINGH)
Under Secretary to the Government of
India”
40. The conduct of the appellant in involving an M.P. and the
Ministry of Law, Justice and Company Affairs, in a matter of the High Court
concerning an administrative review petition filed by him for expunging
adverse remarks in ACRs of 1993 and 1994 is most reprehensible and highly
unbecoming of a judicial officer. His conduct has tarnished the image of
the judiciary and he disentitled himself from continuation in judicial
service on that count alone. A Judge is expected not to be influenced by
any external pressure and he is also supposed not to exert any influence
on others in any administrative or judicial matter. Secondly and still
worst, the appellant had an audacity to set up a plea in the rejoinder
that he never made any representation to Shri R.K. Malaviya, M.P. for any
purpose whatsoever. But for the appellant’s approaching Shri R.K. Malaviya
and his request for help, Shri R.K. Malaviya would have never written the
letter quoted above to the then Minister of State for Law, Justice and
Company Affairs. On this ground also his writ petition was liable to be
dismissed.
41. The learned Single Judge examined the administrative decision
of the Full Court to recommend to the Government to compulsory retire the
appellant as if he was sitting as an appellate authority to consider the
correctness of such recommendation by going into sufficiency and adequacy
of the materials which led the Full Court in reaching its satisfaction.
The whole approach of the Single Judge in consideration of the matter was
flawed and not legally proper. The learned Single Judge proceeded to
examine the materials by observing, “The entire record pertaining to
complaints against the petitioner has also been produced before me during
the course of argument by learned senior counsel for respondent no. 1.
Thus, I am dealing each and every complaint one by one”. We are afraid, the
learned Single Judge did not keep the scope of judicial review in view
while examining the validity of the order of compulsory retirement. The
Division Bench of the High Court in the intra-court appeal was, thus, fully
justified in setting aside the impugned order.
42. Learned senior counsel for the appellant placed heavy reliance
on a decision of this Court in Nand Kumar Verma1. Having carefully
considered Nand Kumar Verma1, we find that the decision of this Court in
Nand Kumar Verma1 has no application on the facts of the present case. This
is clear from para 36 (Pg. 591) of the Report which reads as follows:
“36. The material on which the decision of the compulsory
retirement was based, as extracted by the High Court in the
impugned judgment, and material furnished by the appellant would
reflect that totality of relevant materials were not considered
or completely ignored by the High Court. This leads to only one
conclusion that the subjective satisfaction of the High Court
was not based on the sufficient or relevant material. In this
view of the matter, we cannot say that the service record of the
appellant was unsatisfactory which would warrant premature
retirement from service. Therefore, there was no justification
to retire the appellant compulsorily from service.”
Nand Kumar Verma1 , thus, turned on its own facts.
43. In view of the above, we are satisfied that the recommendation
made by the High Court to the Government for compulsory retirement of the
appellant and the order of compulsory retirement issued by the Government
do not suffer from any legal flaw. The order of compulsory retirement is
neither arbitrary nor irrational justifying any interference in judicial
review. The impugned judgment of the Division Bench is not legally
unsustainable warranting any interference by this Court in an appeal under
Article 136 of the Constitution of India.
44. Civil Appeal is, accordingly, dismissed with no order as to
costs.
…………………….. J.
(R.M.
Lodha)
………………………J.
(Anil R. Dave)
NEW DELHI.
AUGUST 8, 2012.
-----------------------
[1] (2012) 3 SCC 580
[2] (2011) 10 SCC 1
[3] (1974) 2 SCC 831
[4] (2003) 6 SCC 545
[5] (1997) 6 SCC 339
[6] (1993) 4 SCC 288
[7] 1994 (Suppl) 3 SCC 593
[8] (1994) SCC (L&S) 1052
[9] (1992) 2 SCC 299
[10] (1989) 4 SCC 664
[11] (1970) 2 SCC 458
[12] (1992) 1 SCC 119
