J.D. SHRIVASTAVA * > aan STATE OF M.P. & OTHERS |. a January 24, 1984 : ,
(0. CuINNAPPA Reppy, E. S. VeNKATARAMIAH AND R. B. Misra, Ww. i]
.- Fundamental g Rules, Rule _56(3)(a) ‘Compulsory Retiroment»-Adverse entries . :
in confidential reports relating to & remote period—Reliance. on—Whether valid.
_ The appellant was a State Judicial Service Officer ‘in the grade of Additional District & Szssions Jadge. Consequent upon the decision of the State Government to reorganise the Higher Judicial Service it was decided that a number of posts of the cadre of Additional District & Sessions Judges be abolished and the incumbents
..of those posts be absorbed as District & Sessions Judges. The High Court at one of the Full Court meetings held to screen the officers in the cadre of Additional:
District & Sessions Judges, decided to retire the appellant compulsorily on his attaining the age of 55 years under Rule 56(3)(a). of the Fundamental Rules. lt was also decided not to recommend him for promotion, to the cadcé of District and Sessions Judges. ‘The appellant was served with an order of compulsory retirement dated August. 28, 1981,
The Division’ Bench of the High Court dismissed the appellant's. writ petition impugning, his compulsory retirement. — - \
; In the appeal to this Court, it was contended that the High Court had made ~the recommendation to retire the appellant compulsorily without applying its mind ‘and that the decison was based on collateral considerations and was arbitrary. On " behalf of-the High Court it was contended that the personal -confidential records of the appellant were considered by the Full Court. Meeting and the decision to ‘retire the appellant under Fundamental Rule 563)a) was taken after due consideration of the entire record. .
Allowing the appeal:
HELD : 1. it would be an act bordering on perversity.to dig out old files to find out some material to make, an order against an officer. Dependence on entries about 20 yéars before the date on whith the decision of compulsory retirement was taken
* . cannot be" placed for retiring a person compulsorily, particularly when such person concerned has been promoted subsequent to’ such entries. [474H; 475A]
Dd. Ramaswami vy. State of Tamil Nada, {1981) 2S.C.R. 75 referred to.. :
2. The’ power to retire a. Government Servant compulsorily in ‘pilblic interest in terms of a service rule is absolute provided © the authority concerned forms
“=
+
J. De SHRIVASTAVA y, M. P. STATE (Venkataramiah, J). ~ 467 an opinion bona fide that it was necessary to pass ‘such ‘an order-in public: interest.
But if such decision was based on collateral grounds or if the decision was arbitrary, ; - itis Viabje to be inferfered with by Courts. {469 BC]
i
Union of India v. Col "LN? Sinka & Anr., “, font 1S.CR. 791; Union of India y, M.E. Reddy & Anr., [1980] 18.C.R. 736; Swami Saran Saksen® y. State of U.P., [1980] 1 S.C.R. 923; Baldev Raj Chadha v. Union of India &-Ors. [1981] 1 S.C.R.
2 S.C.R. 297; referred to. : .
In. the instant ‘case the High ‘Court relig¢d on some adverse remarks relating to 1959-60 or theréabbuts. Jt was true that in the early part of the appellant's $ career the entries did not appear to be quite satisfactory. Some were “good, some were
..hot good and some were of a mixed kind. But being reports relating to. a remote period, they are not quite relevant for the purpose of. determining whether he should ‘ be retired compulsorily or not in 1981. The scrutiny should have-been confined to the reports for about ten years prior to the date on which action was proposed to be taken. All the reports except for 1972-73 and 1973-74 were good and quite satis- factory. Even in the teports of the said years there was nothing to doubt his integrity. He was punctisal in attending to his work. The reports for the years 1976-77 _ -to 1980-81 speak in favour of the appellant and not against him. . A perusal of the said reports showed that there was nothing. against him.. In these circumstances it was impossible to take the view that the appellant was liable to be compulsorily retired. [470 E-H] #
3. The’ resolution of ‘the High Court recommending to the Government .
that the appellant should be compulsorily retired and the impugned order passed
Judges is also quashed. [474 EF).
Cie AppELLATE Furisprcrion : Civil Appéal No. 3429 of 1982
Appeal by. Special leave from the Judgment and ‘Order dated the 29th July, "1982 of the Madhya Pradesh. High Court in Misc,
Petition No: 1169" of 1981. 0 . oe.
G.L. Singh and Ashok Srivastava for the Appellant.
=. De. Y.S. Chitale, Mrs. AK. j Verma, DN. Misra, AM. Dittia and AK. Sanghi for the Respondents. - .
‘The Judgment of the Court was delivered. by
~VENKATARAMIAH,’ I. ‘The appellant is a judicial ¢ fficer of the
/* 4305-and Brij Bihari Lal Agarwal v, High Court of Madhya Pradesh & Ors. 11981]
- under Fundamental Rule 56(3)(a) are qu&shed. The resolution of the High-Court ~ . . that the appellant was not fit for promotion to the cadre of District and Sessions —
‘. State of Madhya Pradesh, who. would have ordinarily retired on
_ January 31, 1984 on attaining 58 years of Age. He was appeinted
*~
” 468 , ; SUPREME COURT REPORTS £1984] 28.0R.
as a Munsiff-Magistrate in the erstwhile State of Bhopal ‘in 1953...
On reorganisation of States on November 1, 1956, he became ‘a
_ member of the Judicial Service of the State of Madhya Pradesh.. He was promoted as an Additiona! District-& Sessions Judge on January 8, 1974 and was confirmed in that post with effect from November
25, 1974. Consequent upon the decision of the State Government to reorganise the Htgher Judicial Service of the State of Madhya ‘Pradesh in accordance with the advice of the High Court of Madhya
Pradesh; 10} posts of the cadre of - Additional District & Sessions Judges came to be abolished and the incumbents of those posts were
~ to be absorbed as District & Sessions Judges as per «Government Memorandum dated February 24, 1981. On the issue of the ‘said
Memorandum, the High Court of Madhya’ Pradesh decided to screen the officers in the cadre of Additional District & Sessions Judges for the purpose of making recommendation -to the State Government - ' about the promotion of selected officers to the cadre of District & Sessions Judges, For this pipose, Full Court Meetings of ‘the. Madhya Pradesh High Court were - held on February 27 and 28, “1981 and March 1, 1981. The case of the appellant was also. considered in that connection. It is stated that at those meetings, the High Court first resolved to’ scrutinise the cases of all the judicial officers who were to attain the age of 55 years in the year, 1981. In the course of such’ scrutiny the High Court decided on February 27, 1981 . to retire the appellant coMipulsorily on his attaining the age . of 55 years under Rule 56(3) of the Fundamental ‘Rules. On March J, 1981 it decided not to Tecommend him for promotion to the cadre of District & Sessions Judges. “Accordingly, the State Government was addressed by the High Court to retire the appellat compulsorily. ~ The appellant thereafter continued as an Additional District & Sessions
Judge until he was served with the order of compulsory retirement
~ dated August 28, 1981. ‘“Aggrieved by that ordery the appellant filed
° .
a writ petition before the High Court. The petition was dismissed by a Division Bench of the High Court on July 29, 1982. This appeal is preferred by special leave against the judgment of the High Court.
Clause (a) of the Fundamental Rule 56(3) as amended in 1976 |
_ which governs.the ¢ase of. the appellant reads thus:
. . . : . ' _ “FR.56(3)(a) A Government servant may, jn the public interest, be retired at any time after he attains the age of fillyfive years without assigning any reason by giving him @ notice, _ in writing.” - : ‘ fort
>
J. D. SHRIVASTAVA ¥. M. P, STATE (Venkatramiah, ty - 469 It is contended that the. order of compulsory retirement is unsustainable on various grounds and the principal ground urged is that the High Court liad made the recommendation to retire the appellant compulsorily without applying its mind to the case as required by law; that it was a decision based on collateral considerations and that it was arbitrary. we
It is now firmly settled that the power to retire a Government servant compulsorily in public interest in terms 6f a service rule is absolute provided the authority concerned forms an opinion buna fide that it is necessary to pass such an order in public interest. . It is
. equally well settled that if such.decision is based on collateral grounds or if the decision is arbitrary, itis liable to be interfered with by courts. (See Union of India y. Col. J.N. Sinha & Anr.)™ We have also gone through the following decisions, namely, Union of India y. M.B. Reddy & Anr.,” Swami Saran Saksena v. State of U.P., Baldev Raj Chadha v. Union of India & Ors., Brij Bihari Lal Agarwal v. High Court of Madhya Pradesh & Ors. Sand D.Ramaswami v.State of Tamil - Nadu® which have a bearing on the question before us. We shall
“now proceed to déal with the facts of the case in the light of ’ the
. principles enunciated in the above, decisions. - , .
In Para 10 of the counter. affidavit of Shri ALK. Pandey, Addi- - tional Registrar of the High Court of Madhya’ Pradesh filed before this Court, it is stated as follows : - :
Tt is not disputed that Fall Court Meeting was held on, 27th/28th February, as well as Ist March, 1981 to consider the cases of Additional! District & Sessions Judges for promoti-: tion in the Higher Judicial Service. It is also not disputed that the petitioner stood at serial No. 10 in the seniority list of Additional. District & Sessions Judges. It is also not. disputed that he was confirmed as Additional District: & Sessions Judge’ in, “August, ‘1976. The personal corifidential record of the petitioner is placed. before this Hon’ble Court and (it). speaks for itself Annexure’ R-XI to XXXVIID.
o
(1) [1971] 1S.C.R. 791: (2) [1980] 1 S.C.R, 736. <3) [1980] 1 S.C.R. 923. (4) 11981, 1 S.C.R. 430. 7 (5) [1981] 2 S.C.R. 297. (6) [1981] 2 S.CR. 75.
ATO _ SUPREME COURT REPORTS . {1984} 2 s.cr:
Ati is. wrong to. say that any extraneous consideration operated in the Full Court Meeting against the, petitioner and it is wrong to say that the resolutions in the Court Meeting were unjust, arbitrary or malafide.’........ eee anes As already pointed out, the decision was taken in Full Court Meeting after consideration. of the entire record of the petitioner. The decision to retire the petitioner under Fundamental
_ Rule 56(3) was_ after due consideratign of the entire record
~ of the petitioner? (Confidential entries are Annexures R-XT to XXXVHD.2 0) CO ae
.f
— Ona going. through the ‘said counter affidavit we ‘are ‘satisfied: ’ that apart-from the confidential records, nothing else appears to have ‘been relied on: by the High Court to reach’ the decision that the - appellant should be compulsorily retired. We shall now. proceed’ to: examine the confidential rolls maintained i in respect of the appellant.
The Confidential Reports in respect of the appellant are placed before ns, It is stajed by the Registrar of the High Court in Para 13 of the counter affidavit that- the: appellant’s performance ‘for 28 years was taken into consideration for. screening under Fundamental Rule: ° 56(3). The -High-Court has relied on some adverse remafks relating . to 1959-60 or thereabouts, ‘It is true: that in ‘the. early part of his _ cafeer, the entries made'do not appear to be quite satisfactory. They are of varied Kinds, Some are good, some are not gocd and some. are of a mixed kind. But being reports relating to a remote period, | » they are not quite relevant for the pur pose ‘of determining whether he . ~ shouldbe retired compulsorily or not-in the year 1981, as it would 7) be an: act bordering on perversity to dig out old files to find out some material to make an order against an officer. We, therefore; confined our scrutiny to the reports-made in respect of the appellant for about — "ten years prior to the date on which action was taken against him to retire him compulsorily.. We find that all of them except for 1972-73 and 1973-74 are good and quite ,satisfactory. Even in 1972-73 and 1973-74 it is stated that there was nothing to doubt his integrily and that he-was punctual in attending it to his work, J may be noted © that the appzilant was promoted as a ‘an Additional District & Sessions Judge on January 8; 1974 ‘and was also confi2rmeed with eff:ct from November 25, 1974 by an order passed in-1976. -Any adverse report in respect of an earlier pericd unless it had some connection with any _ event-which took place subsequently cannot, therefore, reasonably ‘form a basis for forming an opinion about the work of the-appellant. .
lL
. . 7? wat \ . J. D. SHRIVASTAVA ¥. M. P. STATE (Venkataramiah, J.) 471 oo * - - - We give below a few relevant extracts from the Confidential Reports for the © period subsequent to March 31,.1974 :
Year : 1975
“On confidentia! enquiries from. the members of the Bar and from other sources nothing was found against him in respect of his integrity, During surprise check he was found on the board’ in time. Enquiries from other sources also disclosed that he usually comes in time and does not rise early and engages himself in judicial work. This impression was gathered from judicial diary also. :
After scrutiny of the cases, the following impression was gathered. Knowledge-about rules and orders, Jaw and procedure is adequate but the number of the interlocutory
* application is sometimes not entered jn the margin of the connected: order-sheet in red ink. Judgments are good with proper discussion of evidence. Interlocutory matters are not kept unduly pending for long time. Rules regarding pleadings, and evidence etc. are followed. Punishments were adequate. Examination of accused is proper. Charges framed. are | Proper. Record is 4egible.
. Control and: supervision over the staff is satisfactory..
Judicial diary calls for no particular comments. His “rela-
*. tions with the Bar are cordial, with no complaints of ‘any:
“misbehaviour with any litigants. His average disposal
‘during the period in question was of very good category. There is. nothing else to comment in particular,
Year : 1976
Knowledge ‘of law and judicial Gocd © capacity:
, Remarks about his promptness in. + Promptness satisfactory the disposal of cases : : “Remarks about feputation of integ- Nothing was found ‘against . rity’ and impartiality : his integrity or impartiality. .
General Remarks: . He was mostly punctual and
TQ Oe SUPREME COURT REPORTS [1984] 2s.c.R.
did not rise early. Judgments
- were proper and.contained the required discussion of evidence
- Charges and examination. of . - accused and issues were pro- — per. Prompiness in framing of * ‘issues was marked in recent ‘months, Control and super-*_ vision over the staff was satis---
* factory, Settling dates should
Net Result :
Year 1976-77"
Knowlédge ‘of Law and. Judicial capacity :
Remarks about his promptness inthe disposal of cases :
Percentage of average ~monthly_ disposal : :
~~
Behaviour towards members of the: Bar and Public:
General Remarks:
capaci ty:
“not normall, be of more than two weeks as was noticéd in certain cases, - Interlocutory matters were generally not
' kept unduly pending.
Good
‘Satisfactory an
Generally prompt | 148, 1/2;%
Cordial
" Satisfactorily, managing heavy | ‘and exclusive civil. file. Mostly ~ punctual. . Net Result: Good a ; . | Year 1977-78, - Knowledge of Law and Judicial Gord
Entry “against almost all the ge
4. Géneral Remark :
’ Net Results oe “Good =)
et _y
. é
J.D. SHRIVASTAVA ¥. M, P. STATE (Henkataramiah J) 473 colurans in "the Report-Good and well written.
Year 1979. sO
(a) Shri Shrivastava begins his judicial work punctually.
at 11,00.A.M. and works ‘throughout the Court hours. So far, it appears that he has arranged his Cause List judiciously fixing civil work ‘for the day. This Judge “understands that
- there can be no subsequent pleadings except by way ofamend- ment of pleadings..-In other words, he understands the
-purport of Order 8 rule 9 and Order. 6 rule 7 of the Civil
’- Procedure Code. He also. understands what “is pleading i.e.
Order 6 rule 1 of the Civil.” Procedure. Code as compared with oral statement. He ‘so far. appears to be equally conversant with Order-17 rule 1 of the Civil Procedure.
Code i.e. adjournment is only granted. for sufficient cause.
He does nox find any difficulty in applying law relating to_. - pleadings and interlocutory matters. So far, his procedure - conforms .to niles of pleadings, filing: Of documents, framing of 3 issues and recording of evidence,
-(b) So far, on thé criminal side, he frames charges with ‘care, fecords evidence with such care and: prepares examina: . tion of accused with equal c care,
(©) SO ‘far, he makes a “neat and legible record. He generally supervises “the. work of ministerial staff.
@ His judgments, both on civil and criminal, so far, appear to be well written. He is prompt in his disposals including doing work therein: His work, as'a whole, so . far, has been found to be of high quality. He also takes:
up civil work. His relations with the Bay, so far, appear to be cordial. .
*-¢) The above remarks are su bject to ‘the D.O. No. 462/C. Rs/1979 Jabalpur dated 6.3. 80 of the © High Court,
* Has good grasp of fasts and law. Judgments in proper form ~
474 / SUPREME CO'RT REPORTS {1984} 2s.cr. (Note + The Memo. seat to the appellant in March, 1980 only informed -him of two remarks-—(1) that the did not dispose of Sessions trials quickly and (2) that he did not follow the amended provisions under Order 39 rule 3 of the Civil Procedure Code. The Memo. also disclosed that the appellant did not write judgments in civil appeals according to the pattern prescribed; that Sessions trials: were not conducted quickly and that (he) granted unduly Jong adjournments of _ about a month or so for examination of accused-and defence. witnesses. The appellant sent a prompt reply to it.on March 28, 1980 refuting the correctness of the above remarks. We have gone through the said reply. On going through the facts mentioned therein, we {eel that the remarks‘against him appeet to be totally unciaritable. It shows that the appellant ° has disposed of tore number of cases. {hon what ordinarily could be disposed. of during the relevane period. We are not informed. of what action was taken on his prayer for expunging the said _femarks).
+
Year : 1980-81! His out turn during the year was about 200 percent. The quality of work may be classed as good. “B’ category, No’ specific complaints were received against him about his behaviour or integriff.”
The above reports no doubt speak for themselves as stated in the counter affidavit of the Additional Registrar. But they all speak im. favour of the appellant and not against him. A persual of these ° reports shows that there was nothing against the appellant which - necessitated the action which was taken against him., Jn the state of
" the above record it was impossible to take the view, that the appellant :
was liable to be compulsorily retired, unless there was any other circumstance which was adverse to him, We-have found it necessary to incorporate’in this judgment the relevant confidential remarks in- ' great detail only to show that the action of the High Court was not . called for. We may state here that the learned counsel for the High -
Court very fairly stated that there was no other circurastance against the appellant: during the period. subsequent to J97I which would support the order of compulsory retirement. ‘From what has been stated we find that the decision taken by the High Court in respect of the appellant is arbitrary as it was mainly based on ihe entries that were made about 20 years before the date on which the decision was
- a ; J. D. SHRIVASTAVA ¥. M. P. STATE (Venkatramiah, J.) 475 ’ » taken. Dependence on such stale entries cannot ‘be placed for retir- 2 A} ing a person compulsorily, particularly when the officer.concerned has - been promoted subsequent to such entries, as held by this Court iw - D. Ramaswami's case (supra). In that case one of us (Chinnappa - Reddy, J. ) observed thus at pages 79-8 80:
“In the face of the promotion of the appellarit just a x BR. ‘ few months earlier and nothing even mildiy suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain. the order of the Government ‘retiring the appellant from x service. The learned Counsel for the State of Tamil Nadu - argued that the Government was entitled to tgke into-con~ i sideration the entire history of the appellant including that. “ ¢ part of it which was prior to his promotion. _ We do not say that the previous history of a Government servant should be 7] completely ignored, once he is promoted. Sometimes past . , events may, help to assess present conduct. But when there is nothing in the present conduct casting any doubt on the wisdom: of the promotion, we see no _justification for needless ul. D digging into the past.” : oo
In the result the judgment of the High Court. is, s reversed and the ‘ resolution of the High Court recommending to the, Government that the. appellant should be compulsorily retired and the impugned order passed thereon under Fundamental Rule 56(3) are’ quashed. The resolution of the High Court that the appellant was not fit for a promotion to: the cadre df District'’& Sessions Judges is also quashed. ' The High Court should now consider in the light of this decision “whether ‘the appellant was entitled. to ‘be promoted as a District & Sessions Judge as on the date on which his immediate junior was _ promoted and make appropriate recommendation to, the State Govern- . ff ment. The-appcliaat is entitled to all consequential financial and (other benefits as if the order of compulsory retirement had not been passed. ; ; 4 . The-appea] is accordingly allowed with costs. ne a -- ¢ a vo > NV.K. se, | Appeal allewed.