Wednesday, 24 August 2016

What are basic principle for compulsory retirement of Judicial officer?

It is indeed settled by this time that the order of
compulsory retirement is not a punishment, it implies no stigma-
nor any suggestion of misbehavior and is based on subjective
satisfaction of the authority and this principle has been
consistently followed by the Apex Court that while considering
the case of an Officer as to whether he should be continued in
service or compulsorily retired, his entire record of service upto
that date on which consideration is made has to be taken into
account while taking decision of compulsory retirement, of
course, attaching more importance of service record of last 5-10
years but the evaluation has to be made on the basis of entire
service record and even if one has been promoted that will not
wipe out the earlier adverse entry, if any, and even one solitary
adverse entry in the record of service regarding honesty &
integrity would be considered to be sufficient in taking a decision
of compulsory retirement.
More so, in Judicial service which cannot be considered to
be a service in the sense of employment and the Judicial Officers
discharge their functions while exercising the sovereign judicial
power of the State. There is no manner of doubt that the nature
of Judicial service is such which cannot afford to suffer
continuance in service of persons of doubtful integrity or those
who have lost their utility & integrity. The honesty and integrity
of an Officer is always expected to be beyond doubt, should also
be reflected in his overall reputation. In the case of Baikuntha
Nath Das & Anr. Vs. Chief District Medical Officer,
Baripada & Anr. reported in AIR 1992 SC 1020 the Apex
Court has laid down certain guidelines & the scope of judicial
review to be kept in mind by the courts while examining the
order of compulsory retirement and that include malafides, even
if the order is based on no evidence or if the order is arbitrary in
the sense that no reasonable person with ordinary prudence
would form the requisite opinion on the given material, if it is
found to be a perverse order. The Apex Court, thus, held ad
infra:-
“(i) An order of compulsory retirement is not a punishment. It implies no
stigma nor any suggestion of misbehavior.
(ii) The order has to be passed by the Government on forming the opinion
that it is in the public interest to retire a Government servant compulsorily.
The order is passed on the subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the context of an order of
compulsory retirement. This does not mean that judicial scrutiny is excluded
altogether. While the High Court or the Court would not examine the matter
as an appellate Court, they may interfere if they are satisfied that the order is
passed (a) mala fide or (b) that it is based on no evidence or (c) that it is
arbitrary- in the sense that no reasonable person would form the requisite
opinion on the given material: in short, if it is found to be a perverse order.
(iv) The Government (or the Review Committee, as the case may be) shall
have to consider the entire record of service before taking a decision in the
matter- of course attaching more importance to record of and performance
during the later years. The record to be so considered would naturally
include the entries in the confidential records/character rolls, both
favourable and adverse. If a Government servant is promoted to a higher
post notwithstanding the adverse remarks, such remarks loose their sting,
more so, if the promotion is based upon merit (selection) and not upon
seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court
merely on the showing that while passing it uncommunicated adverse
remarks were also taken into consideration. That circumstance by itself
cannot be a basis for interference”.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH, JAIPUR
(1) D.B.CIVIL WRIT PETITION (CW) No. 12015 of 2010
Petitioner:
Gavendra Singh Chauhan 
VERSUS
Respondent:
1. State of Rajasthan through the Secretary, Department of
Law, Secretariat, Jaipur.
2. The High Court of Judicature for Rajasthan Jodhpur through
its Registrar General.

Date of Judgment : 22nd August, 2016.
HON'BLE MR.AJAY RASTOGI,J.
HON'BLE MR.JAINENDRA KUMAR RANKA,J.



The Officer has filed two separate writ petitions. Initially,
Officer has challenged the order of his compulsory retirement
u/R.53(1) of the Rajasthan Civil Service Pension Rules, 1996 (in
short ‘the Rules of 1996’) dt.31.03.2010 and later on filed
D.B.Civil Writ Petition No.6916/2012 questioning the adverse
remarks recorded in his ACR for the year 2002 and both the writ
petitions have been heard together with the consent of parties.
The facts of the case are that the petitioner Shri Gavendra
Singh Chauhan inducted in the Rajasthan Judicial Service in
January, 1992 after being selected by the Rajasthan Public
Service Commission. He was granted senior scale in the RJS
Cadre w.e.f. 04.04.1998 vide order dt.06.08.2001 and was
promoted as Additional Chief Judicial Magistrate vide order
dt.11.07.2000 and was granted selection grade in RJS Cadre
w.e.f. 30.04.2002 vide order dt.03.01.2003 and was promoted as
Additional District & Sessions Judge (Fast Track) on officiating
basis vide order dt.10.08.2007 w.e.f. 06.01.2005 and while
working as ADJ (Fast Track), Tijara, District Alwar was
compulsorily retired vide order dt.31.03.2010.
While the Officer was working as ADJ (Fast Track), Tijara,
District Alwar, Hon’ble the Chief Justice vide order dt.30.11.2009
constituted a Committee of five Hon'ble Judges of this Court to
scrutinize the cases of such of the Judicial Officers of the State of
Rajasthan who have become deadwood or lost utility to continue
in service for compulsory retirement obviously who qualified pre--
conditions envisage u/R.53(1) of the Rules, 1996. After
constitution, one of the Hon'ble Judge stood retired, Hon’ble the
Chief Justice reconstituted the Committee of four Hon'ble Judges
and the Committee in its meeting held on 02.03.2010 considered
the cases of Judicial Officers including the petitioner and after
examining the overall record of service including personal and
other files of Officers, arrived at the conclusion that the petitioner
became liability to the Judicial Service and public interest
warrants compulsory retirement of the Officer and accordingly
recommended for his compulsory retirement which was placed
before the Full Court and after due deliberation and discussions
and perusing the overall service record & ACRs, it was
unanimously resolved by the Full Court in its meeting
dt.20.03.2010 to accept the report of the Committee &
recommended petitioner’s compulsory retirement and in
consequence thereof vide order dt.31.03.2010, the petitioner
was compulsorily retired u/R.53(1) of the Rules, 1996.
Apart from assailing the order of compulsory retirement on
merits, the petitioner has also questioned the validity of R.53(1)
of the Rules, 1996.
The submission of counsel for petitioner is that R.53(1) of
the Rules, 1996 envisages and casts an obligation upon the
authority while taking decision to retire an officer who has
completed 15 years of qualifying service or has attained the age
of 50 years in public interest on account of his indolence or
doubtful integrity or incompetence to discharge official duties or
inefficiency in due performance of official duties or has lost his
utility, the main considerations for the authority and obviously
such conditions/factors, as envisage u/R.53(1) of the Rules,
1996, in the case of the present petitioner must have been taken
into consideration and the order finally passed by the authority
taking decision of his compulsory retirement may not cast any
aspersion or stigma but the consideration while prevailed in the
mind of the respondents in taking decision to compulsory retire
the officer u/R.53(1) of the Rules, 1996, if looked into the record
will reflect that the facts considered, obviously as referred to
u/R.53(1) of the Rules, 1996 certainly cast a stigma and that
would not have been permissible without holding a disciplinary
enquiry and affording an opportunity of hearing to the petitionerOfficer
and such action of the respondents is invalid and violative
of Art.311(2) of the Constitution and such provision which
constitutes a stigma is arbitrary & unconstitutional, if tested on
the anvil of Constitution.
Counsel further submitted that there is complete disparity
in the qualifying service & age for compulsory retirement
prescribed under the Service Rules of the State of Rajasthan &
Service Rules of the other respective States, as in the State of
Rajasthan u/R.53(1) of the Rules, 1996 the qualifying service for
compulsory retirement is 15 years or age is 50 years and almost
in all other State Service Rules, the age is either 50 or 55 years
but the qualifying service for compulsory retirement vary from
State to State and by & large it is 20 years or more. Thus,
compulsory retirement on completing 15 years of service & in
such of the cases where the officer has not attained the age for
compulsory retirement, invoking R.53(1) of the Rules, 1996, is
discriminatory and violative of Art.14 of the Constitution.
Counsel for petitioner further submits that granting
permission for cessation of his service on the basis of the terms
which are synonyms of misconduct and rendering the Officer
jobless and depriving him of his status which he enjoyed as a
Judicial Officer without hearing him and curtailing the opportunity
to continue in service in accordance with the Rules, which is the
right of the Officer, till he attained the age of superannuation and
depriving him of the opportunities in the matters relating to
employment and reducing the period of service u/R.53(1) of the
Rules, 1996 is indeed violative of Art.14, 16 & 19 of the
Constitution.
Counsel further submits that there was no material
available on record on the basis of which even a man of ordinary
prudence would arrive to a conclusion that the petitioner has
become a deadwood & liability to the Judicial Service or lost his
utility to continue in service and in public interest should be
compulsorily retired.
According to the counsel, the respondents have arbitrarily
exercised the power u/R.53(1) of the Rules, 1996 to retire him
compulsorily, as alleged, in public interest and since the order
impugned dt.31.03.2010 is completely innocuous and when the
matter has come for judicial review, it is the bounden duty of the
respondents to place the material on record to justify their action
and from the record of service which has been referred to by the
respondents in their reply and considered by the Committee
constituted by Hon’ble the Chief Justice, if examined in totality,
the recommendation of the Committee, approved by the Full
Court, in taking a decision of his compulsory retirement in public
interest is not legally sustainable on the first principles laid down
by the Apex Court in the series of judgments and it requires
interference of this court.
Counsel for petitioner has further tried to persuade this
court that the material which has been placed on record does not
sustain the adverse remarks and overall record of the officer was
to be looked into while taking a decision and arriving to the
conclusion that the Officer has either become deadwood or looses
his utility to continue in service and it appears that the
Committee constituted by Hon’ble the Chief Justice has failed to
examine the complete record of service of the petitioner and the
subjective satisfaction which has been arrived at based on the
service record and decision of compulsory retirement of the
officer under order impugned is not sustainable and deserves to
be quashed.
The respondents filed their reply and while supporting the
order impugned submitted that the total record of service
including personal & other files of the petitioner were examined
by the Committee constituted by Hon'ble the Chief Justice and on
the recommendation of the Committee dt.02.03.2010 holding
that the Officer has proved himself to be a liability to the Judicial
service and in the public interest he may be compulsorily retired,
was placed before the Full Court and the Full Court in its meeting
dt.20.03.2010, after scrutinizing the entire service record and
other files of the officer, was unanimous & of the view that
recommendation of the Committee constituted by Hon’ble the
Chief Justice deserves acceptance and it will be in public interest
to compulsorily retire the petitioner and consequently vide
Government order dt.31.03.2010, the petitioner was
compulsorily retired u/R.53(1) of the Rules, 1996.
We have considered the submissions made by counsel for
the parties and with their assistance examined the material on
record.
At the very outset, we would like to quote R.53(1) of the
Rules, 1996 under which the petitioner has been compulsorily
retired and extract of the Rule, which is relevant for the present
purpose, read ad infra:-
“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
Development. In case of such retirement, the government servant shall be
entitled to retiring pension.”
If we see R.53(1) of the Rules, 1996, it gives right to the
competent authority to retire any government servant who has
completed 15 years 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 retire the government servant prematurely from
service.
As regard the submission of petitioner's counsel in assailing
the validity of R.53(1) of the Rules, 1996 is concerned, it is
extensively examined by this court in D.B.Civil Writ Petition
(CW) No.782 of 2011 decided on 17.08.2016 and all the
contentions advanced have been repelled after a detailed
discussion upholding validity of R.53(1) of the Rules, 1996 and it
needs no further consideration in the instant writ petitions.
Adverting to the question whether the compulsory
retirement order suffers from any legal infirmity, we would
consider it appropriate to refer to the report of the Committee
constituted for four Judges who examined the overall service
record of petitioner in its meeting held on 02.03.2010. The
Committee in its report dt.02.03.2010 observed ad infra:-
“The name of petitioner appeared in the zone of consideration at
S.No.49 of the list of ADJ (Fast Track) officers before the above
Hon'ble Committee. Hon'ble Committee considered the case of
the petitioner and recommended the name of the petitioner Shri
Gavendra Singh Chouhan for compulsory retirement in the
public interest observing as under:-
He was born on 05.03.1965 and presently posted as Additional
District Judge (Fast Track), Tijara, District Alwar. The Officer
entered in service in the cadre of Rajasthan Judicial Service in
the year 1992.
In the year 1992, 1994, 1995, 1997 & 2000, he was rated as an
average officer with remark of good Officer and very good
Officer in 1996 and II part of 1997.
In the year 1993, the District Judge concerned recorded that he
be advised to be more strict to follow the procedure. The adverse
remark was communicated and it was not treated as adverse but
advisory only. In the year 2000, the Officer was treated as an
average Officer by the District Judge as well as by the Hon'ble
Administrative Judge and the Hon'ble Administrative Judge
recorded remark that he is an average Officer of quarrelsome
nature and he creates problem where ever posted. His relation
with fellow Officers and superiors as also with Bar also not
good. Hon'ble the Chief Justice then recorded remark that he is
an average Officer in all respects and endorse view of the
Hon'ble Administrative Judge. Against the adverse remarks, a
representation was received from the Officer and the remarks
that “He is an average officer” has been maintained and rest of
the remarks have been expunged. 
In I part of 2002, his integrity was found doubtful and the
complaints were also received with specific complaint of one
case. He was rated as below average Officer. The learned District
Judge reported that there are complaints came to his knowledge
which casts reflection that integrity of the Officer Shri Gavendra
Singh Chouhan (when he was ACJM, Bayana, District
Bharatput). The District Judge refused to certify honesty and
reputation of the Officer. Hon'ble the Inspecting Judge also
recorded that there has been serious complaints against this
Officer and he should never be posed at such place his Uncle is
posted as SHO or any other post. He has been rated as below
average. Against the adverse entries, his representation was
considered and rejected, then he submitted review petition which
also was rejected.
In the year 2004, his integrity was again found doubtful and in II
part of 2004 also, his integrity was again found doubtful but after
considering his representation, the same was rejected but in
review petition the remarks were expunged.
Presently, there are four complaints of corruption pending but
before that it has been brought to our notice that several
complaints have been received by the High Court. We have
perused the complaints. From the totality of facts as well as from
the record, we found that the Officer enjoys no good reputation
about his integrity and honesty and has no good reputation at the
place where he was posted time to time.
In view of overall assessment of the service record including
personal and other files of Shri Gavendra Singh Chouhan, he has
proved himself to be a liability upon the judicial service and,
therefore, in the public interest such judicial officer may be
compulsorily retired immediately. It is further recommended that
enquiry, if any, pending against him under Rule 16 and 17 of the
CCA Rules, may be dropped. It is further recommended that the
Officer may be given a Bank Draft of the amount equivalent to
three month's pay and allowances in lieu of notice period along
with order of retirement.”
While the Officer was posted as Additional Chief Judicial
Magistrate, Bayana, District Bharatpur (from 25.07.2001 to
01.06.2002), District & Sessions Judge rated him as Below
Average Officer in his ACR for the year 2002 Part-I (01.01.2002
to 31.05.2002) and integrity certificate of the petitioner was also
not certified and the Inspecting Judge made following remarks in
the ACR of the petitioner:
“Below Average. There have been serious complaints against Officer. He
should never be posted at the same place his uncle is posted as SHO or any
other post.”
The aforesaid adverse remarks/observations made in the
ACR of the petitioner for the year 2002 was communicated to the
petitioner by the respondent vide letter dt.20.09.2004 and the
representation of the petitioner came to be rejected vide order
dt.11.01.2005.
That apart the respondents have also stated in their reply
the kind of complaints received against the petitioner, of which a
detailed reference has been made. We consider it appropriate to
quote the relevant extract of the reply, which reads ad infra:-
“File No.:R/V/C/202/09 (R/V/JD/C/336/09)
It is submitted that while the petitioner was posted as Additional District &
Sessions Judge (Fast Track), Tijara, District – Alwar, a complaint received
in July 2009 and another complaint dated 10.01.2010 was also received
against the petitioner regarding corruption, work, behaviour and deliberately
judicial discrimination.
File No.:R/V/C/337/09 (R/V/JD/C/568/09)
It is submitted that while the petitioner was posted as Additional District &
Sessions Judge (Fast Track), Tijara, District – Alwar, again a complaint
dated 09.11.2009 was received against the petitioner regarding corruption
relating to Civil Suit decided by the petitioner.
File No.:R/V/C/112/09 (R/V/JD/C/194/09)
It is submitted that during the hearing of S.B.Civil Writ Petition
No.2996/2009 Hon'ble High Court observed that in case No.28/2005
pending in the Court of the petitioner i.e. Additional District Judge (Fast
Track), Tijara, Alwar evidence of the plaintiff was closed on 28.08.2008
while on that date, case was fixed for the evidence of the plaintiff and the
plaintiff had filed Talbana for summoning the witnesses, but no process was
issued by the court and on the date of hearing, evidence was closed after
examining one witness and the order-sheet was not written properly. An
explanation was called from the petitioner regarding above facts. In this
regard the petitioner submitted his explanation dated 11.06.2009 and as per
direction an inquiry u/r.17 CCA was initiated against the petitioner.
Memorandum and statement of allegations dated 22/25.01.2010 were served
upon the petitioner.
File No.:R/V/C/53/2010 (R/V/JD/C/84/2010)
It is submitted that while the petitioner was posted as Additional District &
Sessions Judge (Fact Track), Tijara, District – Alwar, again a complaint
dated 17.01.2010 was received against the petitioner regarding corruption.”
It is indeed settled by this time that the order of
compulsory retirement is not a punishment, it implies no stigma-
nor any suggestion of misbehavior and is based on subjective
satisfaction of the authority and this principle has been
consistently followed by the Apex Court that while considering
the case of an Officer as to whether he should be continued in
service or compulsorily retired, his entire record of service upto
that date on which consideration is made has to be taken into
account while taking decision of compulsory retirement, of
course, attaching more importance of service record of last 5-10
years but the evaluation has to be made on the basis of entire
service record and even if one has been promoted that will not
wipe out the earlier adverse entry, if any, and even one solitary
adverse entry in the record of service regarding honesty &
integrity would be considered to be sufficient in taking a decision
of compulsory retirement.
More so, in Judicial service which cannot be considered to
be a service in the sense of employment and the Judicial Officers
discharge their functions while exercising the sovereign judicial
power of the State. There is no manner of doubt that the nature
of Judicial service is such which cannot afford to suffer
continuance in service of persons of doubtful integrity or those
who have lost their utility & integrity. The honesty and integrity
of an Officer is always expected to be beyond doubt, should also
be reflected in his overall reputation. In the case of Baikuntha
Nath Das & Anr. Vs. Chief District Medical Officer,
Baripada & Anr. reported in AIR 1992 SC 1020 the Apex
Court has laid down certain guidelines & the scope of judicial
review to be kept in mind by the courts while examining the
order of compulsory retirement and that include malafides, even
if the order is based on no evidence or if the order is arbitrary in
the sense that no reasonable person with ordinary prudence
would form the requisite opinion on the given material, if it is
found to be a perverse order. The Apex Court, thus, held ad
infra:-
“(i) An order of compulsory retirement is not a punishment. It implies no
stigma nor any suggestion of misbehavior.
(ii) The order has to be passed by the Government on forming the opinion
that it is in the public interest to retire a Government servant compulsorily.
The order is passed on the subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the context of an order of
compulsory retirement. This does not mean that judicial scrutiny is excluded
altogether. While the High Court or the Court would not examine the matter
as an appellate Court, they may interfere if they are satisfied that the order is
passed (a) mala fide or (b) that it is based on no evidence or (c) that it is
arbitrary- in the sense that no reasonable person would form the requisite
opinion on the given material: in short, if it is found to be a perverse order.
(iv) The Government (or the Review Committee, as the case may be) shall
have to consider the entire record of service before taking a decision in the
matter- of course attaching more importance to record of and performance
during the later years. The record to be so considered would naturally
include the entries in the confidential records/character rolls, both
favourable and adverse. If a Government servant is promoted to a higher
post notwithstanding the adverse remarks, such remarks loose their sting,
more so, if the promotion is based upon merit (selection) and not upon
seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court
merely on the showing that while passing it uncommunicated adverse
remarks were also taken into consideration. That circumstance by itself
cannot be a basis for interference”.
Similar is the view which was further reiterated by the Apex
Court in the case of Posts & Telegraphs Board and Ors. Vs.
C.S.N.Murthy reported in AIR 1992 SC 1368 wherein the Apex
Court has observed ad infra:-
“There was a very limited scope of judicial review in a case of compulsory
retirement and it was permissible only on the grounds of non-application of
mind; mala fides; or want of material particulars. Power to retire
compulsorily a Government servant in terms of Service Rules is absolute,
provided the authority concerned forms a bona fide opinion that compulsory
retirement is in public interest”.
Taking note of later decision of the Apex Court, three
Judges Bench of Apex Court in Pyare Mohan Lal Vs. State of
Jharkhand and Ors. reported in AIR 2010 SC 3753 observed
ad infra:-
“Thus, the law on the point can be summarized to the effect that an order of
compulsory retirement is not a punishment and it does not imply stigma
unless such order is passed to impose a punishment for a proved
misconduct, as prescribed in the Statutory Rules”.
The above settled principles as regards judicial service
came to be examined by the Apex Court in Nawal Singh Vs.
State of U.P. and Anr. reported in (2003) 8 SCC 117, wherein
the Apex Court observed ad infra-
“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 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, the
Supreme Court would not interfere with the same, particularly because the
order of compulsory retirement is based on the subjective satisfaction of the
authority. The present appeals are required to be decided on the basis of the
said principles”.
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.
Compulsory retirement is neither dismissal nor removal and
differs from both of them and 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.
It is also settled by the consistent view of the Apex Court
that the order of compulsory retirement does not have adverse
consequence and, therefore, the principles of natural justice has
no role to play and even uncommunicated ACR(s) on record can
be taken into consideration and an order of compulsory
retirement cannot be set aside for the reason that such
uncommunicated entries were taken into consideration or the
officer has not been afforded an opportunity to represent before
such uncommunicated entries were taken into consideration for
passing the order of compulsory retirement, cannot vitiate the
order of compulsory retirement.
At the same time, the authority has to take into
consideration the entire service record of the officer concerned
but more attention is to be paid to the last 5-10 years of service
record which would include uncommunicated adverse remarks
also.
Similar view has been taken by the Apex Court in Rajendra
Singh Verma (Dead) through LRs. & Others Vs. Lieutenant
Governor (NCT of Delhi) & Others reported in (2011) 10
SCC 1 which reads ad-infra:
“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.”
It has been further considered by the Apex Court in
R.C.Chandel Vs. High Court of M.P. & Anr. reported in
(2012) 8 SCC 58 wherein the Apex Court at para-29 has
observed ad infra:-
“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 higher
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
suspicions. 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.”
After taking note of the principles laid down by the Apex
Court, what emerges is that the formation of opinion for
compulsory retirement is based on subjective satisfaction of the
authority concerned but at the same time when the matter
comes for judicial review, courts can certainly look into as to
whether valid material exists or not, or whether the order of
compulsory retirement is based on some material or not but
sufficiency of material cannot be a ground for setting aside the
order of compulsory retirement.
In the instant case, respondents have placed on record the
complete service record of the officer which was examined by the
Committee constituted by Hon’ble the Chief Justice in its meeting
dt.02.03.2010 and after evaluation, arrived to the conclusion that
the Officer has proved himself to be a liability upon the judicial
service and recommended to compulsory retire him in public
interest and such recommendation of the Committee was placed
before the Full Court and the Full Court took a unanimous
decision after due deliberation and there hardly remains any
chance of allegation of non-application of mind and there appears
no malafide, committed in the process which was adopted by the
respondents in taking decision in regard to compulsorily retire
the Officer and that apart in the report, the Committee took a
serious note of the kind of complaint, of which a detailed
reference has been made and on overall assessment of the
service record including personal & other files of the Officer,
finally recommended that the Officer has become a liability upon
the judicial service and in the public interest he may be
compulsorily retired.
After examining overall material which has come on record,
we do not find any error being committed by the respondents in
taking the impugned decision of compulsory retirement of the
petitioner which is based on record of service and further no
stigma is attached to the order impugned.
Since the petitioner is questioning the remarks recorded in
his ACR of the year 2002 in a separate writ petition filed in the
year 2012, apart from inordinate delay in questioning the
remarks recorded in the ACR of the year 2002, suffice it to say
that as per the law laid down by the Apex Court while examining
the record of the Officer for compulsory retirement, even
uncommunicated remarks can be taken into consideration, as it
constitute part of the service record for evaluating and taking
final decision. Questioning adverse remarks recorded in the ACR
for the year 2002 by the Officer, in these facts & circumstances,
at this belated stage in the year 2012 is not going to serve any
purpose after he has been compulsorily retired.
In view of the above discussion, we do not find any reason
to interfere in the matter and both the writ petitions lacks merit
& accordingly dismissed. No costs.
(JAINENDRA KUMAR RANKA ),J. (AJAY RASTOGI),J.
Solanki DS, P.S.
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