R. K. Mahajan, J.
1. This writ petition is directed for quashing the annual character roll entry given by Hon'ble Mr. Justice R. B. Mehrotra I.J. on 16.7.1996. The second prayer made is for issuance of a writ of mandamus directing the respondents to consider the petitioner's case for selection grade from the due date and for his continuance in service till the age of 60 years uninfluenced by adverse remarks. A writ of certiorari has also been sought for quashing the order dated 12.11.1997 passed by the State of U. P. compulsorlly retiring the petitioner from service and to reinstate the petitioner with all consequential benefits.
2. In this writ petition, the interesting question of law Involved for determination by Judicial verdict is whether the petitioner who Joined the Higher Judicial Service on 23.4.1984 and whose integrity was beyond doubt according to him and judicial work was good as nothing adverse was communicated to him, all of a sudden on visit of Hon'ble Inspecting Judge Incognito, could have been awarded adverse entry that the petitioner was enjoying stinking reputation, his Integrity was doubtful, Judicial performance was poor and unsatisfactory. The next question Involved is whether the enquiry made by the Inspecting Judge Incognito from lawyers and litigants when the lawyers were on strike regarding reputation of petitioner and other officers can be made basis to spoil the career of petitioner without any sufficient material and without concrete and cogent instances of Integrity and whether the adverse entry can be reviewed by the High Court in its supervisory Jurisdiction as it is administrative action when petitioner's representation has been rejected by the Administrative Committee and on the basis of the same he has been compulsorlly retired. These are the questions which fall for Judicial consideration of this Court and require deep judicial analysis.
3. It appears that petitioner. Joined, as already stated, U. P. Higher Judicial Service on 23.4.1984. He was posted as Additional Dlstt. Judge, Moradabad from June, 1992 under Sri Tej Shankar the then Dlstt. Judge. Moradabad who was later on elevated to the Bench. He was also posted under Sri Bhagwandin the then Distt. Judge, Moradabad who also was elevated to the Bench later on. It may be stated that the petitioner was posted with 3 (three) Dlstt. Judges who were later on elevated to the Bench, namely, Sri N. S. Gupta, Sri Bhagwandln and Sri Tej Shankar, and according to petitioner, there was no complaint to all those 3 (three) the then Dlstt. Judges against his work and conduct.
4. It appears that the then Inspecting Judge Moradabad Hon'ble Mr. Justice R. B. Mehrotra conducted surprise Inspection at Moradabad Judgeship on 18th April, 1995 and annual Inspection from 22nd May to 28th May, 1995. It may be mentioned at this stage that the Dlstt. Judge has written the annual confidential report of 1995 of the petitioner and nothing adverse was noticed by him. The relevant part of the said Inspection note which was received by the petitioner in December, 1995 and copy of which is attached as Annexure-3 to the writ petition, reads as under :
"The assessment of performance of the Judicial work has been done on the basis of the cases decided by the officer in the month of August, 1994. This method has been adopted for assessing the judicial performance on at random survey basis.
The officer has sent the files of 13 Sessions trials and 6 ball applications for my perusal, decided by him in the month of August, 1994. In all the. sessions trials, the accused have been acquitted on the ground that the prosecution witnesses have turned hostile.
In Sessions Trial No. 119 of 1989, the accused have been acquitted under Sections 399/402, I.P.C. and Section 25 Arms Act. The accused has been acquitted under Section 25 of the Arms Act on the ground that sanction of prosecution granted by the Dlstt. Magistrate against one accused was Illegal. What was the Illegality in the sanction, has not been pointed out. The statements of the prosecution case has not been property discussed. The Judgment is sketchy. No proper reasons have been recorded discarding the evidence of the prosecution witnesses.
In Bail Application No. 1980 of 1994, ball has been granted in a case of fire-arm Injury, under Section 302. I.P.C. on the ground that two persons fired whereas the Injury found on the person of the deceased was only one. Even assuming that the bullet fired by the other person did not hit the deceased, admittedly the allegation is that both the accused had fired with an Intention to kill the deceased who was actually killed. There was absolutely no Justification of granting ball on the aforesaid ground.
In Ball Application No. 187 of 1995, ball has been granted by referring that there is a judgment of Justice Patok Basu. This is no way of quoting precedent. The reference of the Judgment should have been mentioned, if the Judge, wanted to rely on a decision of this Court. Justice Basu must have delivered many judgments and on which judgment the officer is relying should have been Indicated in the order.
Likewise in Ball Application No. 3241 of 1994, ball has been granted on the basis of parity. No reference has been made in the order granting ball that who was the co-accused, who has been granted ball. What was the role assigned to the co-accused and what was the role assigned to the applicant.
The orders passed in the aforesaid ball applications are also sketchy. The Judicial performance of the officer is assessed to be poor and unsatisfactory."
5. It may be mentioned that in the year 1984-85, the then Administrative Judge Hon'ble Mr. Justice N. N. Mlthal gave remark that petitioner's relations with members of the Bar are reported to be good, the Dlstt. Judge rated the officer as good and the officer was transferred on administrative grounds from Etawah. In the year 1985-86, the same Administrative Judge has certified Integrity of the petitioner and has given remark that the officer took pains to dispose of old sessions trials and special cases under the Dacolty Affected Areas Act and his Judgments are properly written and expressed in good language.
6. In the year 1986-87, there is no adverse entry against the petitioner. There is remark that he has taken Interest in disposal of old cases both civil and criminal. His Judgments on facts and law are sound, well reasoned and expressed in good language. The officer has good control over his office and possesses administrative capacity and tact. Relations with the members of the Bar are cordial. On overall assessment Sri P. K. Jain the then Dlstt. Judge (subsequently elevated to the Bench) had rated the petitioner to be good officer. In the year 1987-88 more or less the entry is similar, to that of 1986-87.
7. In the year 1988-89, the entry of the petitioner is recorded by Sri N. S. Gupta, the then Dlstt. Judge (subsequently elevated to the Bench). He has given remark to the petitioner that the Integrity of the officer is beyond doubt, Judgments on facts and law are sound, well reasoned and expressed in good language and on over all assessment the officer has been rated as good.
8. In the year 1989-90, good entry has been given to petitioner by the then Distt. Judge Sri P. P. Gupta and in the year 1990-91 also, the petitioner. has been given good entries, and his Integrity has been certified. More or less similar entry is awarded to petitioner in the year 1991-92. In the year 1992-93, Sri TeJ Shankar the then Dlstt. Judge, Moradabad (subsequently elevated to the Bench) has given good entry to the petitioner and his Integrity is stated to be beyond doubt. Similar entry has been given by Sri Bhagwan Din the then Dlstt. Judge (subsequently elevated to the Bench) in the year 1993-94. Similarly in the year 1994-95 Sri Bhagwan Din the then Dlstt. Judge, Moradabad has stated that the Integrity of the officer was beyond doubt and on overall assessment the officer was rated as good, before the visit of Hon"ble the then Inspecting Judge.
9. We have perused the entire service record of the petitioner and there is nothing adverse against him. We would not like to comment much except this that neither the Dlstt. Judges under whom he was posted were not careful in Judging the conduct of the petitioner and failed in their duties or all of sudden the officer became dishonest and his Integrity became doubtful. It is also possible that the facts may not have been brought to the notice of respective Dlstt. Judges. We are also to adjudge as up to what extent the opinion gathered by the Inspecting Judge on his two visits for surprise inspection and annual Inspections referred above is supported by material on the basis of which the officer has been described as enjoying stinking reputation and his Judicial performance not good. We are also to keep in view that the reputation is adjudged by others and it is told by public. We are also aware of the fact that the reputation should not be assessed on Individual opinion and it should have some nexus with the objectivity. We have also to consider as to how far the Judicial verdicts which has been figured in the annual remarks in question can lead to his judicial Impropriety and Judicial unsatisfactory performance. We are also aware of the fact that we can Interfere only (f the process of recording remarks is faulty and not bases on material. We are also aware of the principle that the administrative action can be Interfered if no reasonable man can take such a view which has been taken by the authority. We cannot substitute our opinion over the opinion of the assessing authority but we can certainly examine the process by which the opinion has been formed. The reasonableness is subject-matter of Judicial review, therefore, we can adjudge whether reasonable procedure has been adopted while arriving at the conclusion.
10. The only counter-affidavit available on record is that of the respondent No. 2 the Dlstt. Judge, Moradabad. High Court has not chosen to file counter-affidavit. The counter-affidavit on behalf of respondent No. 2 has been filed by one Mool Raj Goswaml, Senior Administrative Officer, Moradabad judgeshlp who has said that he is acquainted with the facts of the case. In para 5 of the counter-affidavit, it is stated that no adverse entry was given to the petitioner by the District Judge Moradabad from June, 1992 to June, 1995 the period during which petitioner was posted at Moradabad. In para 6. It is stated that there is nothing on record to show that any letter was written by the Dlstt.. Judge, regarding reputation of the petitioner. Regarding communication of oral Instructions, nothing can be said because the petitioner did not serve with Sri P. C. Agarwal who was Dlstt. Judge, Moradabad at the time of filing of the counter-affidavit. In para 9, it is stated that Sri Badam, Slngh Yadav. Advocate was lifted away by some lawyers from the Court of District Judge, Moradabad in January, 1995. It appears that notices were received by the Bar on 6.3.1995 against four advocates and the Bar went on strike w.e.f. 10.3.1995. No clarification has been made as to why the members of bar went on strike and why the advocate was lifted. It appears from the record that the letter written by Justice Mehrotra to Honljle the Chief Justice which we have perused, revealed that some time in the month of December, 1994, some lawyers made a grievance against a court moharrtr attached to the Court of the District Judge that he was not showing the police diary to the lawyers, who were not paying bribe demanded by the court moharrir, but to other lawyer he was showing the police diary who were paying bribe demanded by him. The District Judge expressed his inability to do anything except reporting the matter to the Senior Superintendent of Police. The District Judge also told Justice Mehrotra that he assured the lawyers that he would transfer the concerned court moharrir and he actually transferred the concerned court moharrir. However, due to aforesaid reason, the lawyers began a boycott of the Court of the District Judge. During the boycott, some of the lawyers used to work in the Court of the District Judge. One day, during the boycott four lawyers were dragged outside the Court of the District Judge by some other lawyers against whom the District Judge reported the matter to the High Court for Initiating contempt proceedings. The lawyers confirmed that they approached the District Judge who said that he will get the matter withdrawn from the High Court.
11. This background regarding Issuance of notices which has not been clarified in the counter-affidavit should have been clarified to Judge the entire facts and circumstances in proper perspective.
12. It appears from the record attached with the letter of Hon'ble Mr. Justice R. B. Mehrotra to Hon'ble the Chief Justice that a news item was published in the local newspaper regarding reasons behind the strike and the surprise visit of the Inspecting Judge. The news item shows that an appeal was made to the lawyers to end the strike. Some of the advocates were working and normalcy was restored. One wing of the advocates turned to work after defying the strike resolution of the Bar. This is how the things were going on at the relevant time.
13. It may be mentioned that the High Court has retired the present petitioner compulsorily at the age of 58 years and has not given the benefit of extension in view of the amendments Incorporated in U. P. Judicial Officers (Retirement on Superannuation) Rules, 1992 raising the retirement age of Judicial officers up to 60 years pursuant to Apex Court's mandate in All India Judges Association case, JT 1993 (4) SC
618. Thereafter the petitioner amended the writ petition and took the plea that he was entitled to be considered for grant of the benefit of enhancement of retirement age up to 60 years if the impugned adverse entries are expunged as after expunctlon of the same, there remains nothing on record against the petitioner to disentitle him from the extension and other consequential benefits on the basis of All India Judges Association case.
14. Sri Budhwar, learned counsel for the petitioner submitted that there was no material on record to support the adverse entry given to the petitioner by the Inspecting Judge. It was recorded on the basis of loose talks. He further submitted that the lawyers and litigants who lose case, describe the Judicial officers as corrupt and having bad reputation. He also submitted that the career of Judicial officers should not be spoiled or blemished on non-existing materials. He also submitted that recording of annual confidential reports should be based on objective considerations and adverse Information received must be shared with the officer concerned or the officer concerned must be confronted with the Information prior to recording annual confidential report. He relied upon the following authorities :
1. State of U. P. v. Vamuna Shankar Misra arid another, JT 1997 (4) SC 1.
2. Ishwar Chand Jain v. High Court of Punjab and Haryana and another. (1983) 3 SCC 370.
3. Kashi Nath Roy v. State of Bihar. AIR 1996 SC 3240.
4. S. P. Lal v. High Court of Judicature at Allahabad and another, 1996 AWC 1813.
5. S. Ramchandra Raju v. State of Orissa, JT 1994 (5) SC 459.
6. Nirmal Kumar Jain v. State of U. P. and others, 1998 (1) AWC 108 (LB).
15. Sri Sunll Ambwanl, learned counsel for the High Court has made two fold submissions- Firstly, he submitted that adverse entry is not subject-matter of Judicial review and secondly, he submitted that even if adverse entry is subject-matter of judicial review, the stinking reputation and Judicial disposal of the officer is not subject-matter of Judicial review. He has further submitted that the petitioner was not entitled to extension up to the age of 60 years. He placed reliance on following authorities :
1. Air Vice Marshal S.L. Chhabra v. Union of India and others. 1993 Suppl. (4) SCC 441.
2. Bharat Ram Meena v. Rajasthan High Court and others, (1997) 3 SCC
3. Swatarttar Singh v. State of Haryana and others. (1997) 4 SCC 14.
Some more authorities were cited by both sides but it appears unnecessary to refer all of them.
16. Now coming over to the first aspect of the matter regarding Judicial review, we have expressed our view that the process of writing entries is subject-matter of judicial review. The administrative action can be struck down if it is based on no evidence or on non-existent facts or if no reasonable man can arrive at the same conclusion. The test of reasonableness regarding striking down of the administrative action is discussed in Seventh Edition of 'ADMINISTRATIVE LAW by Sir H.W.R. Wade and C.F. Forsyth at page 389. The discretion should be exercised reasonably, fairly and Justly. The proceedings should be limited and bound with the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glasses and pretences and not to do according to their wills and private affections. It is stated that House of Lords have detected a difference, in that proportionality requires the Court to Judge the necessity of the action taken as o well as whether it was within the range of courses of action that could reasonably be followed.
17. Describing the standard of reasonableness, it is stated at page 399 that the Court must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the Legislature is presumed to have Intended. Decisions which are extravagant or capricious cannot be legitimate. But if the decision is within the confines of reasonableness, it is no part of the Court's function to look further into its merits. It is often expressed by saying that the decision is unlawful if it is one to which no reasonable authority could have come. This is the essence of what is now commonly called 'Wednesbury unreasonableness', after the now famous case in which Lord Greene M.R. expounded it as follows :
"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done- For Instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'."
Lord Hailsham L.C. had said, two reasonable persons can perfectly reasonable come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.
18. At page 400, it has been further stated that unreasonableness has thus become a generalised rubric covering not only sheer absurdity or caprice, but merging into Illegitimate motives and purposes, a wide category of errors commonly described as 'Irrelevant considerations'. These principles of reasonableness have been enshrined in Articles 14 and 21 of the Constitution of India, on which administrative action can be safely tested.
19. Now coming over to the cases cited by Sri Budhwar, learned counsel for the petitioner, in the first case, i.e., Yamuna Shankar's case (supra). It is ruled that it is preferable to share information with concerned officer and thus give an opportunity to erring/corrupt officer to correct the errors and it has been held as under :
"Before forming an opinion to be adverse, the reporting/officers writing confidential should share the Information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the Judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite giving such an opportunity, the officer falls to perform the duty, correct his conduct or Improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him."
20. In the second case, i.e., Ishwarchand Jain case (supra) their Lordships of Supreme Court has observed that High Court should not readily form adverse opinions and act against Judicial officers merely on the basis of unjustified resolutions passed by Bar Association or complaints made on trifling matters against them. High Court must guide and protect the honest judicial officers. Mistake committed at Initial stage by probationary officers, it without corrupt motive, should normally be overlooked. Action can be taken against them only when they fall to improve even after warning and guidance. In the context of Instant case, it may be stated that if corruption was prevailing in Moradabad Judgeship and the reputation of so many officers was stinking, it was also for the Bar Association to have brought it first to the notice of the District Judge as essentially Bar is the pillar of administration of justice and without Bar, Courts cannot function efficiently and dispensation of justice also cannot be possible. If the Bar is strong, the Bench is also strong. If the Bar is Intelligent, naturally the Bench has to be intelligent. These days the society as a whole is passing through crisis and the character has become casualty. If on the pointing out of the Bar, the District Judge was not in a position to take any action, the Bar should have referred the Instances to the High Court on administrative side.
Mere wild allegations would not spoil the reputation of the officer rather the complaint must be supported with some material.
21. The advocates are sentinels of Justice. If one section of the Bar says one thing and the other section says quite another, it becomes difficult to adjudge the authenticity. In the instant case, Inspecting Judge visited the judgeshlp and complaints were brought to his notice but there are no instance cited. In the Instant case, there is a peculiar feature. There is letter dated 20.4.1995 of Distt. Judge, Moradabad addressed to the Inspecting Judge which is enclosed with the letter of Inspecting Judge to Hon'ble the Chief Justice in which Distt. Judge has stated that though there is no complaint against Sri Sarnam Singh, he also has connections with the said caucus of lawyers and publlcmen and his reputation is also very bad. The report is self-contradictory. It was the duty of the Dlstt. Judge to enquire the cases. The Distt. Judge is incharge of administration of justice at Distt. level.
22. The system of writing annual remarks is defective. In this system, the officers who are very good and work with utmost sincerely and devotion, cannot get good entries. On the other hand, those officers who are expert in flattering and other activities get excellent entries. Sometimes pressures and other factors also work. The honesty, dedication and Integrity have been given gobye in most of the cases. These are general remarks that we are making. Their lordships of Apex Court have ruled that the confidential reports should be objective and fair and the conclusions must be based on existent and relevant materials. Before writing entries amber light signals should be given to the officers so that they can correct and mend themselves.
23. In the Instant case, we are of the view that the Bar has failed in its broader duties of pointing out to Distt. Judge and the Distt. Judge could not consider the complaints which could have been referred by the Inspecting Judge while writing the entries.
24. S. Ramchandra Raju's case (supra) need not be discussed here as this has got reference in earlier cases.
25. In S. P. Lal's case (supra), the decision of Administrative Committee was set aside by the Division Bench of this Court as the officer was not given a fair and reasonable opportunity of hearing. It may be exphaslsed that no adverse entry should be given without warning or chance to improve.
26. We are of the view that as far as possible, the High Court on administrative side should judge the work by inspecting the Judgments and Inspection notes of the Judicial officers and also by meeting different sections of the society. The effective disposal given on any one or two days, should also be checked. So monthly and yearly. Even on anonymous complaints of serious charges, discrete enquiries should be made cautiously, comments of the officer and report of the Distt. Judge should be obtained and considered, otherwise it will demoralise the working of subordinate Judiciary which is the basic feature for Imparting justice at grass root level and the people still consider it as temple of justice. We are also aware that there are black sheeps in the Judiciary and they need to be corrected but it is for the. collective wisdom of the High Court on administrative side to do so.
27. In N. K. Jain's case (supra), a Judicial officer was not considered for extension and the 'decision of the High Court was set aside by the Division Bench. Here we would like to mention the ratio laid down by their Lordships of Supreme Court in All India Judges Association case (supra). Their Lordships observed that the potential for continued utility shall be assessed and evaluated by a Committee of Judges headed by the Chief Justice and the evaluation shall be made on the basis of the Judicial Officer's past record of service, character rolls, quality of Judgment and other relevant matters. Those Judicial Officers who are not found fit and eligible by this standard, should not be given the benefit of the higher retirement age and should be compulsorily retired at the age of 58 years by following the procedure for compulsory retirement. This assessment is for the purpose of finding out the suitability of a Judicial Officer for the the entitlement of the benefit of increased age of superannuation from 58 years to 60 years. It is also mentioned in paragraph 28 of the said judgment of the Apex Court that the benefit will be available to those who have a potential for continued useful service and should not be a windfall for the indolent and infirm and those of doubtful integrity, reputation and utility. Therefore, we are of the view that to get the benefit of extension in retirement age up to 60 years the High Court has to assess the continued utility of the officer and if it is found by the High Court that the officer has potential of continued utility in that eventuality he may be considered for the benefit of extension in the age of retirement up to 60 years.
28. It would not be needless to mention here that on administrative side, assessment is to be made that if the officer has done good till the age of 50 years why his services should not be utilised up to 60 years as the experience has no replacement. One should not be refused extension ordinarily unless he suffers from the infirmities mentioned in the Judgment of the Apex Court.
29. Two Division Bench decisions rendered in Civil Misc. Writ Petition No. 10842 of 1997, Bahoran Singh v. State of U. P. and others and Civil Misc. Writ Petition No. 24693 of 1996, Parmeshwar v. State of U. P. and others decided by respective Division Benches of this Court but no comments are needed thereon as they are the decisions on own facts of respective cases.
30. Sn Ambwanl submitted that it is not subject-matter of Judicial review as has been ruled by the Division Benches of this Court but the Division Bench has ruled that the scope of Judicial review is very limited but it can be challenged if decision is based on no evidence or the decision is arbitrary.
31. Relying upon Air Vice Marshal's case (supra). Sri Ambwanl submitted that neither the High Court nor the Supreme Court can act as Court of appeal and while exercising power of Judicial review. Court should not venture to assess and appraise the merit or the grading of an officer. This ruling is on Its own facts. Similarly Bharatram Meena's case (supra) is also a ruling on own facts of that case where it has been held that on facts of that case remarks could not be quashed. Swatantra Stngh's case (supra) is also not applicable to the facts of Instant case.
32. Now we would like to deal with the submissions of Sri Budhwar learned counsel for the petitioner, that the performance of judicial officer has been assessed by the Inspecting Judge on the basis of Judgments and orders referred in Annexure-3 to the writ petition quoted above but the fact remains that there can be two opinions on the same set of facts and that there is no evidence that the Judgments and orders are procured from the petitioner out of extra-considerations. It is said that to err is human. Infallibility is unknown. Their lordships of Supreme Court has often observed that we are yet to see the human being/Judicial officer who does not commit mistake. Honest officer should not be clubbed with dishonest or corrupt officers.
33. Sri Budhwar also submitted that criticism has been made by the Inspecting Judge while assessing the quality of the Judgments of the petitioner in State v. Bhagat Singh which is attached with the supplementary affidavit that the Special Judge. Moradabad, i.e., petitioner acquitted accused on the ground that sanction of the-Distt. Magistrate was not in conformity with the legal requirements and it has been argued that the Inspecting Judge criticised the Judgments on administrative side while recording his character roll that the order is sketchy. We don't want to comment upon the Judgments on Judicial side nor it is desirable. The fact remains that the Special Judge (petitioner) acquitted the accused under Sections 349/402. I.P.C. and 25 Arms Act. Similarly, other judgments have also been criticised by the Inspecting Judge. Sri Budhwar learned counsel for petitioner has relied upon few Judgments of High Court in which balls have been granted even in serious cases by the High Court. Sri Budhwar tried to convince us about the situation that the lower courts follow the ratio laid down by the High Court in cases cited at the Instance of the lawyers.
34. In this context, we would like to refer few judgments. There is a Judgment of this Court attached by the petitioner which was delivered in Criminal Misc. Bail Application No. 7650 of 1980, Ram Naresh v. State of U. P., in which ball was granted in a murder case. It was a case of single shot having hit the deceased. Two persons were said to have fired. The statements under Section 161. Cr. P.C. appear to have not mentioned the fact as to whose shot hit the deceased. Similarly, there is one more Judgment of Hon'ble Mr. Justice Palok Basu in Inder Pal Singh v. State of U. P., 1989 UPCrR 92. In this case. Initially the case was not registered under Section 307. I.P.C., later on charge-sheet was filed under Section 307, I.P.C. It has been observed that accused never Interfered with prosecution witnesses nor abused or misused the ball, therefore, the ball granted to accused should not be Interfered with Maximum he could be asked for fresh ball bonds.
35. In Culab Singh v. State, 1995 UPCrR 286, it was observed that the applicant was allegedly armed with a fire arm and according to the post-mortem report, the deceased had received only one gun shot injury. So in the circumstances the ball was granted.
36. In Kasht Nath Roy v. State of Bihar, AIR 1996 SC 3240. their lordships of Apex Court have observed that the Courts exercising ball Jurisdiction should refrain from Indulging in elaborate reasoning in their orders in justification of grant or non-grant of ball. However, giving reasoning disclosing his mind while granting ball could not be considered a glaring mistake or Impropriety so as to pass condemning remark and Initiate action against concerned officer. In para 6 of the Judgment, their Lordships further observed as follows :
"It cannot be forgotten that in our system like elsewhere, appellate and revisional courts have been set up on the pre-supposltlon that lower courts would in some measure of cases go wrong in decision making, both on facts as also on law, and they have been knit-up to correct those orders. The human element in Justlclng being an Important element, computer like functioning cannot be expected of the Courts, however, hard they may try and keep themselves precedent-trodden in the scope of discretions and in the manner of Judging. Whenever any such Intolerable error is detected by or pointed out to a superior Court, it is functionally required to correct the error that may, here and there, in an appropriate case, and in a manner befitting, maintaining the dignity of the Court and Independence of Judiciary, convey Its message in its Judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellow but clear, and result-orienting, but rarely as a rebuke. Sharp reaction of the kind exhibited in the afore-ex traction is not in keeping with Institutional functioning. The premise that a Judge committed a mistake or an error beyond the limits of tolerance, is no ground to Inflict condemnation on the Judge subordinate, unless there existed something else and for exceptional grounds."
37. We get sufficient strength in our view that the Judicial officers are to be condemned only when there is foundation for doing so coupled with concrete and objective information received and shared with the officer. In Judicial, functioning, as observed earlier, the Judge cannot keep both parties happy. What is required is to preserve faith of people in administration of Justice. The society expects to this extent. The Integrity and reputation are earned and achieved by exhibition of conduct in day to day discharge of official duties. It is a long process and it is an earning of one's career and step towards promotion. It is sine qua Ingredient of consideration for promotion. The allegations and counter allegations are made and there is a retreat when it comes to be proved. Human nature may be, what it is but an empire should be objective in verifying the allegations.
38. Here we would like to quote the observations of famous author Smith, Woolf and Jowel in 'JUDICIAL REVIEW OF ADMINISTRATIVE ACTION' (Vth Edition) at page 4. It was observed that if prejudicial allegations are to be made against a person, he must normally, as we have seen, be given particulars of them before the hearing so that he can prepare his answers. In order to protect his Interests he reiust also be enabled to controvert or comment on other evidence or Information that may be relevant to the decision ; Indeed, at least in some circumstances there will be a duty on the decision maker to disclose Information favourable to the applicant, as well as Information prejudicial to his case. If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness. Irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases Involving the use of undisclosed reports by administrative tribunal and other adjudicating bodies. These observations have been quoted Just to Illustrate the right of a petitioner for the right to have a fair hearing and to know the particulars and the Information.
39. Apart from above, one should not forget that the atmosphere in the lower courts some time becomes noisy when ball applications are taken up and trials are conducted and as a result of the same. It becomes very difficult for the presiding officers to appreciate all points raised before them. But it does not mean that in such cases, the Judgment or orders are obtained or procured on extraneous considerations. We are also aware of the position prevailing these days that there happens to be a long gap between the investigation, recording of evidence and conclusion of trial. So in this process, Judicial officers should not be sacrificed unless there are sufficient Justification and material to show that they are Inefficient and corrupt. The efforts are always made from accused side that the trial should not start till the witness does not turn hostile. It also happens that in some cases, one accused gets bail from the High Court, the co-accused presses for bail on the ground of parity in that eventuality before the lower court. In my capacity as Inspecting Judge, I (Justice R. K. Mahajan) have observed such things. The standard in the society has gone so down that in most of the cases, witnesses turn hostile for one or the other reason, therefore, in our opinion, merely because most of the trials have resulted in acquittals, the judicial officer should not be blamed unless he has done something on extra-considerations. Some time trial does not start unless the witness turns hostile. This is fault in the system Itself and, therefore, all concerned have to make efforts for its rectification.
40. In view of the discussions made above, we are of the considered view that the Impugned adverse entry is unjustified, arbitrary and based on nonexistent facts, therefore, liable to be quashed. Consequently, we quash the Impugned adverse entry and Impugned order of compulsory retirement. As a result of which High Court of Judicature at Allahabad is directed to consider the case of petitioner for extension of service up to the age of 60 years afresh and selection grade prayed within a period of six weeks from the date of receipt of this order and to take decision in accordance with law and the Judgment of the Supreme Court. There shall be no order as to costs. The writ petition is disposed of accordingly.