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Article 235 in The Constitution Of India 1949
Article 310 in The Constitution Of India 1949
The Probation of Offenders Act, 1958
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Article 226 in The Constitution Of India 1949

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Rajasthan High Court - Jodhpur
Yashpal Singh Chaudhary vs State Of Raj. & Anr on 19 August, 2013
                                      [1]

         IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
                                AT JODHPUR

                                    ****

                                :JUDGMENT:


                       Yashpal Singh Chaudhary
                                  Vs.
                       State of Rajasthan & Anr.



              D.B. CIVIL WRIT PETITION NO.12093/2010

                            Writ Petition under Article
                           226 of the Constitution of In-
                                        dia



        DATE OF JUDGMENT:                         19th August, 2013

                               PRESENT

          HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY
               HON'BLE MR. JUSTICE P.K. LOHRA



       Mr. Dipesh Beniwal, legal representative of the petitioner,
           in person.
       Mr. V.K. Mathur, Assistant Solicitor General of India for re-
           spondent No.2, Rajasthan High Court.
       Mr. Anand Purohit, Additional Advocate General, assisted by
           Mr. Pradhuman Singh, for the respondent State.

Reportable

       BY THE COURT (PER HON'BLE LOHRA, J):

1. This legal battle was launched at the behest of a compulsorily retired judicial officer for assailing the impugned order dated 31st of March 2010 (An-

[2] nex.9), and after his unfortunate demise in Ut- trakhand Gory Tragedy, is pursued by his legal representatives.

2. Scorning the checkered history of the case, the brief facts giving rise to this litigation are that at the threshold of his judicial career, the petitioner was appointed as Munsif & Judicial Magistrate vide order dated 16th of July 1980 under Rule 21 of the Rajasthan Judicial Service Rules 1955 (for brevity, hereinafter referred to as 'the Rules of 1955'). Pursuant to order dated 16th July 1980, the peti- tioner joined his duties on 29th of July 1980 and was made substantive on the post of Munsif & Ju- dicial Magistrate vide order dated 11th April 1983 w.e.f. 29th of July 1982. Thereafter, the petitioner was promoted to the post of Civil Judge cum Addi- tional Chief Judicial Magistrate in the RJS cadre vide order dated 26th May 1993. However, subse- quently, the date of grant of selection scale was altered and made effective from an anterior date i.e. 7th September 1992 vide order dated 6th Au- gust 2001. In adherence of the Resolution of the Full Court, the petitioner was allowed Selection [3] Scale in RJS Cadre w.e.f. 11th May 1994, followed by Super Time Scale in RJS cadre w.e.f. 4th of April 1998 on the basis of merit vide order dated 25th of June 1999.

3. The petitioner earned another promotion in the Rajasthan High Judicial Services cadre as Addi- tional District & Sessions Judge vide order dated 2nd of June 2000 and after rendering seven years' services in the RHJS cadre, granted Selection Scale vide order dated 13th of June 2007 w.e.f. 1st of March 2006. On 31st of March 2010, the peti- tioner was compulsorily retired under Rule 53(1) of the Rajasthan Civil Services (Pension) Rules 1996 (for brevity, hereinafter referred to as 'the Rules of 1996'), which order was served on the petitioner on 4th of April 2010. The petitioner has averred in the writ petition that the order of com- pulsory retirement was accompanied by a Banker's Cheque bearing No.846463 dated 6th of April 2010 for a sum of Rs.2,20,875 i.e. three months' pay and allowances in lieu of notice as postulated under Rule 53(2) of the Rules of 1996. As per the version of the petitioner, as a conse-

[4] quence of his revision in the pay scale in accor- dance with the recommendations of the 6th Pay Commission w.e.f. 1st January 2006, he was not paid three months' pay and allowances as per re- vised pay scales. On receipt of the Banker's Cheque, the petitioner addressed a communica- tion to the second respondent on 26th of May 2010 and in adherence of his communication, the differ- ence amount of three months' pay and allowances was paid to him in the month of September 2010. Before receiving the difference amount, according to the petitioner, a communication was sent to the second respondent on 16th of June 2010 that he is depositing the said amount towards notice under Rule 53(2) of the Rules of 1996 alongwith order of compulsory retirement under protest while reserving his right to challenge the order of compulsory retirement.

4. It is, inter-alia, pleaded in the writ petition that on 5th of April 2010, the petitioner made endeavor to obtain copies of his Annual Confidential Reports from 1980 to 2009, percentage of judicial work undertaken by him in the said duration, and copy [5] of report submitted by the Committee constituted for recommending compulsory retirement along with certain other documents. By placing on record communication dated 21st of August 2010, the petitioner has alleged in the writ petition that his request was declined by the said communica- tion. On receipt of the order of compulsory retire- ment, the petitioner submitted a representation to the appointing authority on 29th of April 2010 but no heed was paid to the said representation and after waiting for some time the petitioner decided to pursue remedy against the order of compulsory retirement by way of this writ petition. Taking a definite stand in the writ petition that due to non- availability of the information sought for by him, he has laid the challenge in this writ petition against the impugned order on the basis of avail- able material and craved the leave of this Court to challenge any adverse order/communication which may be submitted before this Court. An endeavor was made by way of prayer in the peti- tion seeking direction against the respondents to place on record his entire service record. Relying on Rajasthan Judicial Service Rules 2010 (here-

[6] inafter referred to as 'the Rules of 2010'), the pe- titioner has averred in the writ petition that by virtue of Rule 57 of the Rules of 2010, any order made/action taken under the Rules of 1955, or under the Rajasthan Higher Judicial Service Rules, 1969 (for brevity, hereinafter referred to as 'the Rules of 1969) was saved. Mentioning the object of Rule 53 of the Rules of 1996 for compulsory re- tirement, the petitioner has placed on record Cir- culars issued by the Government on 21st of April 2000 and 20th of July 2001. Laying emphasis on Circular dated 21st of April 2000, the petitioner has pleaded in the writ petition that the said cir- cular was never pressed into service vis-à-vis the petitioner for the interregnum period from 2000 to 2009, which clearly and unequivocally reveals that there was nothing wrong with his service record. Recapitulating the fact of compulsory re- tirement of some of the judicial officers in the year 2004, the petitioner has asserted that uptil 2004 nothing adverse was available against him. For substantiating his assertion, the petitioner has also averred that he was allowed Selection Scale of RHJS cadre w.e.f. 1st of March 2006. Embark-

[7] ing on all these facts, the petitioner has submitted in the writ petition that as a matter of fact no ad- verse material was available against him for his premature retirement, and as such the exercise of powers for the same is illegal and arbitrary and the impugned action is dehors Rule 53 of the Rules of 1996.

5. In the pleadings, under the caption 'Facts with regard to the service record of the petitioner', the petitioner has made an affirmative attempt to project his unblemished service record. In sub- stance, the narrations are depicting tall claims about track record of the petitioner. Taking a dis- solute note regarding adverse remark for the year 1983, the petitioner has specifically averred in the writ petition that the said remarks were expunged by communication dated 22nd February 1990. Switching on to his alleged conduct of using unfair means in the year 1984, while appearing for LL.M. (Previous) Examination, the petitioner has stated in the writ petition that he has appeared in the said examination after due permission from this Court and the said episode ended happily when [8] the petitioner was exonerated by the Syndicate of the University vide communication dated 5th July 1991. With these facts, the petitioner has made an endeavor that there is no scar on his service profile in this behalf and for substantiating the same he has placed on record the letter dated 6th of July 1991, whereby the Registrar (Vigilance) of this Court has dropped enquiry proceedings against him.

6. While quoting the incident of the year 2006, when the petitioner was posted as Additional Dis- trict Judge, Jodhpur, he has tried to impress that while discharging his judicial duties he never mis- behaved with any advocate and the so called complaint against his behavior was unfounded. For defending his actions to call upon lawyer to argue the appeal, the petitioner has tendered his explanation that he made sincere endeavor to persuade the lawyer to argue the appeal which was old one, and for his said conduct no motive can be attributed to him. Casting aspersions on the lawyer representing the case of the appellant in Appeal Decree No.109/2002 (26/2002), the pe-

[9] titioner has averred in the writ petition that the complaint at the behest of the lawyer was actuat- ed with malice, and was baseless and vexatious. Mentioning about a communication of displeasure by the then Hon'ble Chief Justice Mr. S.N. Jha, dated 8th of January 2007, the petitioner has averred in the writ petition that in Criminal Appeal No.15 of 2006, the benefit of probation under Section 4 of the Probation of Offenders Act was extended by him to the accused-appellant in exer- cise of his bonafide judicial discretion and there was no ill-motive on his part. Reiterating his stand that he had acted bonafide, while extending probation to the accused-appellant, the petitioner has very candidly stated in the petition that in case the act of the petitioner is to be construed as an act of negligence, he has already tendered his apology for the same. Adverting to the note of displeasure of the then Chief Justice, the petition- er has submitted in the writ petition that against the same he submitted a representation but the same is still pending and he has not been commu- nicated outcome of the said representation. Justi- fying his order of probation, the petitioner has [10] buttressed in his pleadings that while granting probation to the accused-appellant, he had no knowledge that the accused was earlier granted the benefit of probation by the trial Court and the said order of probation was violated by him.

7. Projecting embellished version of his judicial ca-

reer, the petitioner has made an affirmative at- tempt to pacify the note of displeasure of the then Hon'ble Chief Justice by narrating in the writ peti- tion that by order dated 13th June 2007 he was al- lowed Selection Scale of Rajasthan Higher Judicial Services. Once again referring to the note of dis- pleasure, the petitioner has stated in the writ pe- tition that the same cannot be construed as the penalty within the four corners of Rajasthan Civil Services (Classification, Control & Appeal) Rules 1958, inasmuch as no such penalty is envisaged under Rule 14 of the said Rules. The petitioner has also referred to certain adverse remarks made against him by this Court while deciding S.B. Civil Writ Petition No.5375 of 2005 decided on 20th of September 2005. During the course of arguments, it was brought to the notice of this [11] Court that after petitioner's efforts to seek ex- punction of those remarks before the Division Bench proved abortive, he approached the con- cerned Bench and by a verdict dated 29.03.2013 the remarks have been expunged.

8. The writ petition is contested by the first respon-

dent and reply was submitted. The first respon- dent in its reply has justified the impugned order of compulsory retirement by stating that the same is not a penalty, and therefore, the scope of judi- cial review in such matters is very much limited. Stoutly defending the order of compulsory retire- ment, the first respondent has pleaded that the order was passed on the resolution of Full Court of the High Court, which is based on the recommen- dations of the Committee duly constituted by the then Chief Justice, and therefore, the order of compulsory retirement is not justiciable. Stating that the order of compulsory retirement has been passed in public interest, the first respondent has submitted in the reply that in the matter of com- pulsory retirement provisions of Article 311 of the Constitution of India are not attracted.

[12]

9. The respondent No.2 in its reply has refuted all the averments contained in the writ petition. De- fending the order of compulsory retirement, the second respondent has pleaded in the return that under Rule 53 of the Rules of 1996 a condition is envisaged for compulsory retirement of a govern- ment servant on completion of 15 years of service or attaining the age of 50 years, whichever is ear- lier. The respondent No.2 has also stated in the reply that the appointing authority has resorted to Rule 53(1) of the Rules of 1996 to compulsorily retire the petitioner from the service in public in- terest, and therefore, the same cannot be con- strued as punishment so as to attract Article 311 of the Constitution of India. In its reply, the second respondent has placed heavy reliance on a verdict of Apex Court in case of Pyare Mohan Lal Vs. State of Jharkhand & Ors. [(2010) 10 SCC 693]. Quoting some of the paragraphs from the said judgment, the second respondent has submitted in the reply that while considering a case of judicial officer for compulsory retirement, [13] certain yardsticks and parameters are required to be pressed into service. Referring to a judgment of Apex Court in case of State of Orissa Vs. Ram Chandra Das [(1996) 5 SCC 331], the second respondent has submitted in the reply that merely because an incumbent has earned promo- tion after suffering adverse entries, his compulso- ry retirement from the services cannot be faulted. In substance, the second respondent has made an attempt to persuade this Court that the scope of judicial review in the matter of compulsory retire- ment is very much limited and this Court is not obliged to delve deep into the matter by way of making a roving enquiry to find out the real ob- ject. Highlighting the purpose of compulsory re- tirement, the respondent has pleaded that it is a mechanism to chop the dead wood, who has out- lived his utility for the services. Vociferously de- fending the order of compulsory retirement, the second respondent has averred in the reply that the then Hon'ble Chief Justice of the High Court, under Rule 53(1) of the Rules of 1996, constituted a Committee, which has examined the entire ser- vice record including the personal and other files [14] of the petitioner and the Committee has found that the petitioner is a liability upon the judicial service and his retention in the judicial service is not desirable in public interest. Taking note of the recommendation of the Committee, the Full Court has approved the same and recommended for compulsory retirement of the petitioner and those recommendations have facilitated the compulsory retirement, which is not infirm in any manner whatsoever, and therefore calls for no interfer- ence by this Court.

10. After submission of the reply by the respondents, the petitioner has submitted rejoinder to reply of the second respondent reiterating all the aver- ments which were made in the writ petition. Join- ing the issue with the respondent on public inter- est, the petitioner in his rejoinder has averred that for invoking public interest it is necessary that the competent authority must record its sat- isfaction that due to indolence, doubtful integrity, or incompetence to discharge his official duties, or inefficiency in due performance of official duties, the incumbent has outlived his utility for services.

[15] Conceding on the issue that in the matter of com- pulsory retirement Article 311 of the Constitution is not attracted, the petitioner has submitted in the rejoinder that the competent authority while forming its opinion that the incumbent has be- come dead wood cannot rely on extraneous con- siderations and furthermore the said opinion of the competent authority must be founded on co- gent material. If no adverse material is available, such an opinion can be examined by this Court in exercise of its power of judicial review. Distin- guishing the judgments on which the respondent has placed reliance, the petitioner has urged that ratio decidendi of these verdicts is not applicable in the present case. Emphasizing that judicial re- view in the matter of compulsory retirement is permissible on the ground of non-application of mind, malafide, or want of material particulars, the petitioner has submitted in the rejoinder that no public interest is involved in passing of the im- pugned order of compulsory retirement. In the rejoinder, the petitioner has also referred to some of the legal precedents.

[16]

11. Subsequent to submission of the rejoinder, an additional affidavit is submitted for placing on record certain documents on 7.12.2012 by the pe- titioner. After the said demise of the petitioner, his legal representative Mr. Dipesh Beniwal has also tendered an additional affidavit and alongwith the same certified copy of the order dated 29th March 2013 passed by the writ Court is placed on record. The endeavor made by the legal repre- sentative of the petitioner by placing on record the said order is to impress upon this Court that the adverse remarks attributed to him in S.B. Civil Writ Petition No.5375 of 2005 have been ex- punged.

12. During the course of hearing, the learned counsel for the second respondent has placed before us the minutes of the meeting of the Committee con- stituted by the Hon'ble Chief Justice under Article 53(1) of the Rules of 1996 dated 2nd of March 2010, proceedings of the Full Court meeting held on 29th of September 1993, minutes of the meet- ing of Full Court dated 1st of May 1999, minutes of the meeting of Full Court dated 26th of October [17] 2002 by circulation, minutes of the proceedings of Full Court meeting dated 27th of November 2004, minutes of proceedings of Full Court meeting dat- ed 1st June 2007, minutes of proceedings of the Full Court meeting held on 14th December 2007 and the minutes of the proceedings of the Full Court meeting held on 20th March 2010 in sealed envelope for our perusal.

13. Mr. Dipesh Beniwal, legal representative of the petitioner, appearing in person, has argued that the impugned order of compulsory retirement is bad in law because there is no adverse material available against the petitioner to form an opinion that he had outlived his utility for the services and had become a dead wood. Contending with lu- cidity, Mr. Beniwal would urge that the petitioner, who was a judicial officer, earned promotions on the basis of merit from time to time, was shunted out by resorting to Rule 53(1) of the Rules of 1996 in an absolutely unreasonable manner, and therefore, the impugned order in the backdrop of the facts of the instant case is not sustainable. The humble legal representative of the petitioner, [18] while projecting the unblemished service profile of the petitioner, has submitted that even if the judi- cial review in the matter of compulsory retirement is myopic, the instant case is a fit case wherein limited scope of judicial review is to be invoked for examining the legality of the impugned order. Mr. Beniwal would urge that the petitioner was never subjected to disciplinary enquiry in his en- tire service career of three decades and further- more he was never communicated any adverse remarks in his ACRs except the ACR of 1983, which too was subsequently expunged. He fur- ther submits that the petitioner has availed regu- lar promotions and at no point of time he was su- perseded and was also allowed the higher pay scales from time to time on the basis of his merit with optimum output in discharge of his judicial duties, has been visited with the impugned order of compulsory retirement without any rhyme and reason. Arguing with full emphasis, Mr. Beniwal has contended that adverse remarks in his ACR for the year 1983, which was subsequently ex- punged, cannot be made as basis to infer that the petitioner has outlived his utility in the services.

[19] He further submits that use of unfair means in his LL.M. Examination cannot be cited as a reason for his compulsory retirement when the allegation it- self was wiped out after his exoneration by the University. Questioning the order of compulsory retirement, Mr. Beniwal has argued that a malafide complaint by the member of the Bar, for which no explanation was called for from the peti- tioner, cannot be made a basis for his compulsory retirement, nor a note of displeasure by the then Chief Justice with respect to a judicial order passed by the petitioner can be cited as a valid reason for his compulsory retirement. For the purpose of explaining the term 'merit' in the con- text of service jurisprudence, Mr. Beniwal has placed reliance on a verdict of Apex Court in Gu- man Singh Vs State of Rajasthan [(1971) 2 SCC 452].

14. For the purpose of confidential reports under the various heads, viz., proper mode of writing, pur- pose of communication, effect of delay in commu- nication, and effect of expunction of the adverse [20] remarks, Mr. Beniwal has placed reliance on fol- lowing judgments:

· (2009) 17 SCC 770 - Pawan N. Chandra Vs. Ra- jasthan High Court · 2003 (1) WLC (Raj.) 623 (DB) - S.K. Bansal Vs. Rajasthan High Court.

· (1999) 1 SCC 529 - State of Gujarat Vs. Suryakant Chunilal Shah · (1999) 1 SCC 241 - U.P. Jal Nigam Vs. S.C. Atri · (1996) 10 SCC 369 - M.A. Rajasekhar Vs. State of Karnataka · 1994 Suppl. (3) SCC 424 - S. Ramchandra Raju Vs. State of Orissa · 1991 Suppl.(2) SCC 126 - R.K. Singh Vs. State of UP.

· 1990 (2) RLR 111(DB) - M.P. Mittal Vs. Ra- jasthan High Court.

· (1987) 2 SCC 602 - State of Haryana Vs. P.C. Wadhwa

15. On the issue of ill-motivated complaint by the members of the Bar and the role of the High Court vis-à-vis complaints, Mr. Beniwal has placed re- liance on the following verdicts:

· (2013) 4 SCC 301 - Nirmala J. Jhala Vs. State of Gujarat & Anr.

· (1988) 3 SCC 370 - Ishwar Chand Jain Vs. High Court of Punjab & Haryana [21] Under the service jurisprudence, the law govern- ing the province on merit, promotion, mode of writing An- nual Confidential Reports, and frivolous and vexatious com- plaints by the members of the Bar against a judicial officer, is trite and therefore we are not inclined to deal with the le- gal precedents on which reliance is placed on behalf of the petitioner. Even otherwise, in our considered opinion, these judgments are not throwing light on the main issue which requires judicial scrutiny by this Court.

16. Mr. Beniwal, while assailing the impugned order of compulsory retirement, has urged that even if the power of judicial review is limited in such matters, the Court can examine the materials available on record to conclude that whether the retention of the incumbent in the services was reasonable or not in the public interest. Mr. Beniwal would urge that for forming an opinion that the incum- bent employee has become a dead wood, avail- ability of adverse material against him is a pre- requisite and if this Court comes to the conclusion that no adverse material is available against the incumbent, then the order of compulsory retire- ment requires judicial review in exercise of ex-

[22] traordinary jurisdiction of this Court. For this proposition, Mr. Beniwal has placed reliance on following authoritative judgments of the Apex Court:

· (2012) 3 SCC 580 - Nand Kumar Verma Vs. State of Jharkhand & Ors.

· (2005) 9 SCC 748 - Pritam Singh Vs. UOI · (2001) 3 SCC 314 - State of Gujarat Vs. Umedb- hai M. Patel · (2000) 2 SCC 339 - High Court of Judicature at Allahabad Vs. Sarnam Singh · (1999) 4 SCC 579 - High Court of Punjab and Haryana Vs. Ishwar Chand Jain · (1999) 3 SCC 396 - Madan Mohan Choudhary Vs. State of Bihar · (1998) 7 SCC 310 - M.S. Bindra Vs. UOI · (1996) 5 SCC 103 - Sukhdeo Vs. Commissioner, Amravati Division, Amravati · (1996) 3 SCC 619 - Narsingh Patnaik Vs. State of Orissa · 1994 Suppl. (3) SCC 424 - S. Ramachandra Raju Vs. State of Orissa · (1992) 2 SCC 299 - Baikuntha Nath Das Vs. Chief District Medical Officer, Baripada & Anr. · (1984) 2 SCC 8 - J.D. Srivastava Vs. State of Madhya Pradesh & Ors.

· (1982) 1 SCC 510 - D. Ramaswami Vs. State of Tamilnadu · (1980) 4 SCC 321 - Baldev Raj Chadha Vs. UOI Reiterating his submissions, Mr. Beniwal has argued that as a matter of fact, no adverse material was available against [23] the petitioner and from the reply to the writ petition submitted by the respondents also it is crystal clear that in the return there is no disclosure about the adverse material against the petitioner. Therefore, according to Mr. Beniwal in such a situation there was obviously no justifiable reason to adjudge the petitioner incompetent or inefficient, or indolent judicial officer so as to chop him as a dead wood by way of compulsory retirement. Substantiating his argument, Mr. Beniwal has submitted that in view of admitted facts, the order impugned is arbitrary, perverse and based on irrelevant material, or is actuated by malice, and the same cannot be sustained.

17. Mr. Beniwal, the humble legal representative of the petitioner, has argued that non-availability of service record has seriously prejudiced the cause of the petitioner and despite demand non-supply of the service record clearly tantamount to denial of reasonable opportunity of being heard. Argu- ing that service record is liable to be made avail- able to the employee so as to enable him to have access with the same for assailing the action of the employer, Mr. Beniwal has submitted that this sort of practice is against the fair play. For this [24] proposition, Mr. Beniwal has placed reliance on the following judgments:

· (2008) 8 SCC 725 - Dev Dutt Vs. Union of india · 1990 (2) RLR 111 (DB) - M.P. Mittal Vs. Ra- jasthan High Court · (1987) 3 SCC 513 - Kailash Chandra Agrawal Vs. State of M.P.

18. Mr. Beniwal, while challenging the impugned order of compulsory retirement, has urged that the notes appended to the rules governing the province of compulsory retirement and the circu- lars issued by the Government from time to time for effecting compulsory retirement have not been adhered to in the instant case and this sort of omission by the respondents has vitiated the im- pugned order. Mr. Beniwal would urge that the notes appended to the rules and the circulars is- sued by the government from time to time, pre- scribing guidelines for effectuating compulsory re- tirement, cannot be given go-by and if the notes appended to the rules and the circulars have been overlooked then the same has rendered the im- pugned order nonest in the eye of law. For sub-

[25] stantiating this argument, Mr. Beniwal has placed reliance on following verdicts:

· (2009)15 SCC 221 - M.P. State Cooperative Dairy Federation Vs. Rajnesh Kumar Jamindar · (2009)13 SCC 758 - Swarn Singh Chand Vs. Punjab Electricity Board · (1975) 4 SCC 86 - Tara Singh Vs. State of Ra- jasthan

19. Arguing with full emphasis, Mr. Beniwal has sub-

mitted that passing the adverse remarks/displea- sure by the higher judiciary against a subordinate judicial officer with regard to his judicial order, is to be resorted by the higher judiciary sparingly and not in a routine manner. Mr. Beniwal con- tends that passing disparaging remarks against a subordinate judicial officer for his judicial orders is not congenial in the justice delivery system be- cause of its obvious ill-effects. For this proposi- tion, Mr. Beniwal has placed reliance on following legal precedents:
· (2012) 6 SCC 491 - Amar Pal Singh Vs. State of U.P.
· (2010) 11 SCC 722 - "K" A Judicial Officer Vs. Registrar General, High Court of Andhra Pradesh · (2008) 17 SCC 538 - V.K. Jain Vs. High Court of Delhi [26] · (2007) 4 SCC 566 - Inspector, Premchand Vs. Government of NCT of Delhi · (2006) 1 SCC 524 - Kailashbhai Shukaram Tiwari Vs. Jostna Laxmidar Pujara · (1997) 4 SCC 65 - Braj Kishore Thakur Vs. Union of India · (1996) 4 SCC 539 - Kashi Nath Roy Vs. State of Bihar · 1996 (2) WLC 255 (DB) RSEB Vs. Iqbal Singh.
· 1994 Suppl. (1) SCC 540 - K.P. Tiwari Vs. State of M.P.
· (1992) 4 SCC 54 - State of Punjab Vs. Ram Singh · 1987 (2) RLR 560 (DB) - Gauri Shankar Mishra Vs. State of Rajasthan · AIR 1968 SC 453 - Alok Kumar Roy Vs. S.N.

Sharma

20. Per contra, the learned counsel for the High Court, Mr. V.K. Mathur, has urged that the impugned or- der of compulsory retirement is passed on overall evaluation of the entire service record of the peti- tioner on the basis of recommendations of a duly constituted committee by the then Hon'ble Chief Justice under Rule 53(1) of the Rules of 1996 af- ter its approval by the Full Court with due deliber- ations, therefore, no interference with the im- pugned order in exercise of extraordinary jurisdic- tion of this Court is warranted. Refuting the con-

[27] tentions of the petitioner, Mr. Mathur would urge that scope of judicial review in the matter of com- pulsory retirement is very much limited and the same cannot be equated with an appellate juris- diction. Mr. Mathur submits that in the matter of compulsory retirement, subjective satisfaction of the appointing authority or the employer is suffi- cient to shorten the tenure of an incumbent em- ployee in the public interest and the Court, while examining the same, cannot delve deep into the matter and probe the material for unearthing the reasons for recording subjective satisfaction. Stoutly defending the impugned order, Mr. Mathur has urged that duties entrusted to a judicial offi- cer are very sacrosanct, and his conduct, integrity and reputation is of a great significance, and therefore, yardsticks and parameters for these services are at a higher pedestal vis-à-vis other employees. According to Mr. Mathur, a solitary incident reflecting honesty or integrity of a judicial officer can be considered as vital for forming an opinion that he has outlived his utility for the ser- vices. Learned counsel for the respondent High Court has also urged that while passing the order [28] of compulsory retirement, even un-communicated ACRs can be taken into consideration, or even ad- verse entry prior to earning of the promotion or crossing of efficiency bar, or picking up higher rank cannot be treated as wiped out and the same can be taken into consideration for assessing the overall performance of the employee. In support of his arguments, the learned counsel for the re- spondent High Court has placed reliance on fol- lowing authoritative legal precedents: · (2012) 8 SCC 58 - R.C. Chandel Vs. High Court of M.P.

· (2011) 10 SCC 1 - Rajendra Singh Verma Vs. Lt. Governor of NCT Delhi · (2010) 10 SCC 693 - Pyare Mohan Lal Vs. State of Rajasthan · (2009) (5) SCC 732 - National Aviation Ltd. Company Vs. S.M.K. Khan · (2005) 13 SCC 581 - Shiv Dayal Gupta Vs. State of Rajasthan · (2003) 8 SCC 117 - Nawal Singh Vs. State of U.P.

· (2002) 3 SCC 641 - State of U.P. Vs. Vijay Kumar Jain · (2001) 3 SCC 389 - State of U.P. Vs. Lasla Ram · (1998) 4 SCC 92 - State of Punjab Vs. Gur- das Singh · (1996) 5 SCC 331 - State of Orissa & Ors. Vs. Ram Chandra & Ors.

· AIR 1994 SC 1261 - Union of India Vs. V.P. Seth · (1992) 2 SCC 299 - Baikuntha Nath Das Vs. Chief District Medical Officer, Baripada & Anr.

[29]

21. The learned Additional Advocate General, appear-

ing for the respondent State, has adopted the ar- guments advanced by the learned counsel for the High Court and submitted that there is no infirmi- ty much less legal infirmity in the impugned order which calls for interference by this Court. We have heard the learned counsel for the par-

ties, perused the materials on record, and scanned the record produced by learned counsel for the High Court in sealed envelope, meticulously.

22. The core question, which has cropped up in the instant petition, hinges on the scope of judicial re- view in the matter of compulsory retirement or premature retirement. The concept of compulsory retirement or premature retirement has its origin from the doctrine of pleasure. The genesis of doctrine of pleasure relates back to the pre-inde- pendence era when Public Servants Enquiries Act 1850 was passed, wherein a provision was envis- aged that conducting enquiry against an employee was optional and the Government had power to dismiss its servants at pleasure. The said provi-

[30] sion was incorporated under Section 25 of the Act during the era of East India Company. After the assumption of the Government of India by the Crown, this rule of English Common Law contin- ued unaltered till 1919 when Section 96-B was in- troduced by the amendment of Government of In- dia Act of that year. Sub-sec.(1) of Section 96-B of the Government of India Act 1919 reads as un- der:

"Subject to the provisions of this Act and of rules made thereunder, every person in the civil service of the Crown in India holds office during his Majesty's pleasure and may be employed in any manner required by a prop- er authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed.

The tenure of a Government servant at the plea- sure of His Majesty remained unaffected under the Govern- ment of India Act 1935 also. Under the Government of In- dia Act 1935, the only protection was extended to the gov- ernment servant was that he could not be dismissed by an authority subordinate to that by which he was appointed. When our holy Constitution came into force in the year 1950, the doctrine of pleasure was incorporated with clarity and precision under Article 310 of the Constitution. Article [31] 310 of the Constitution clearly envisage that "except as ex- pressly provided by the Constitution, every person who is a member of defence service or of a civil services of the union, or of an All India Service, or holds any post connect- ed with defence or any civil post under the union, holds of- fice during the pleasure of the President, and every person who is a member of the civil service of a State, or holds any civil post under a State, holds office during the pleasure of the Governor of the State". Considering the amplitude of the pleasure doctrine, there remains no doubt that the rules framed by the State under proviso to Rule 309 or under Acts referable to that Article are subject to the provisions of Article 310 (1) of the Constitution of India. Thus, constru- ing Rule 53 of the Rules of 1996 on the touchstone of plea- sure doctrine, as envisaged under Article 310 of the Consti- tution, there cannot be any quarrel that this subordinate legislation is in consonance and conformity with the law mandated by Article 310 of the Constitution of India.

23. The pleasure doctrine, which has its origin way back in the year 1850, and which has acquired a legal shape in our Republic after coming into force of our Constitution in the year 1950 by virtue of Article 310 of the Constitution, is a doctrine of [32] great significance for maintaining efficiency in the administration and for cleansing the administra- tion from corrupt, indolent and incompetent em- ployees and officers. This is, in fact, a process of weeding out the dead wood, who has proved to be a liability in the services or who has outlived his utility in the services. In the present context, the weapon of compulsory retirement in the hands of appointing authority is paying its dividend and by way of resorting to this mode of chopping the dead wood, the administration is making sincere endeavor in achieving its laudable object of effi- cient, effective and purpose oriented administra- tion. In the present matter, we are primarily concerned with the judicial services and maintain- ing efficacy of these services is obviously of high magnitude, which cannot be sacrificed.

24. Now, let the matter be subjected to judicial scruti-

ny in the light of the law evolved by the judg- ments rendered by the Apex Court on the issue. The legal position is no more res-integra that de- cision to compulsorily retire an employee/officer from the services can be based on subjective sat-
[33] isfaction of the appointing authority/employer and for recording subjective satisfaction the entire ser-

vice record of an incumbent is to be looked into. The precise object of recording subjective satis- faction is to find out whether retention of an in- cumbent in the service is desirable in the public interest. While recording its subjective satisfac- tion, the competent authority can examine all the pros & cons on the basis of available material for forming an opinion that the incumbent employee has become a dead wood and has outlived his utility for the services. This subjective satisfac- tion of the appointing authority/employer cannot be made subject matter of judicial review unless and until it is proved that it was actuated by mal- ice, or it is arbitrary, and not based on any mate- rial whatsoever. No other ground for assailing the subjective satisfaction of the appointing authority/employer is permissible in exercise of extraordinary jurisdiction of this Court because an order of compulsory retirement is neither a penal- ty nor it casts stigma on the character of the in- cumbent.

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25. Although on behalf of petitioner and on behalf the respondents plethora of legal precedents are cited in support of their pleas but we deem it just and appropriate to deal with some of the judgments which are relevant and throwing light on the lis in- volved in the matter.

26. In Baikuntha Nath Das Vs. Chief District Med-

ical Officer, Baripada & Anr.[(1992) 2 SCC 299], while considering the scope of judicial re- view, the Apex Court has made following obser- vations in Para 32 to 34:

32. We may not be understood as saying either that adverse remarks need not be communicated or that the representations, if any, submitted by the government servant (against such remarks) need not be considered or disposed of. The adverse remarks ought to be communicated in the normal course, as required by the rules/orders in that behalf. Any representations made against them would and should also be dealt with in the normal course, with reasonable promptitude. All that we are saying is that the action under F.R. 56

(j) (or the rule corresponding to it) need not await the disposal or final disposal of such representation or representations, as the case may be. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration. On this account alone, the action under F.R. 56(j) need not be held back. There is no reason to presume that the Review Committee or the government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an [35] opportunity to explain or rebut the same. Similarly, if any representation made by the government servant is there, it shall also be taken into consideration. We may reiterate that not only the Review Committee is generally composed of high and responsible officers, the power is vested in government alone and not in a minor official. It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action. Such an unlikely situation, if indeed present, may be indicative of malice in law. We may mention in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action.

33. At this stage, we think it appropriate to append a note of clarification. What is normally required to be communicated is adverse remarks

-- not every remark, comment or observation made in the confidential rolls. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56(j) or a rule corresponding to it. The object and purposes for which this power is to be exercised are well stated in J.N. Sinha and other decisions referred supra.

34. The following principles emerge from the above discussion:

(i) An order of compulsory retirement is not a punishment. It implies neither stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or

(b) that it is based on no 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 [36] order.

(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter -- of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.

(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.

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

27. In case of High Court of Judicature at Alla-

habad Vs. Sarnam Singh [(2000) 2 SCC 339], the Apex Court while examining the scope of Arti- cle 235 of the Constitution, laid down the criteria and guidelines for scope of inspection by the In- specting Judge and taking note of the fact that no adverse material was available against the judicial officer, has interfered with the order of compulso- ry retirement. The Apex Court, while considering unblemished service record of the incumbent judi- cial officer, recorded a finding that sans the latest confidential reports written by the inspecting [37] judge, which too are found by the High Court on judicial side to be unjustified, arbitrary and based on non-existent facts, finally concluded that the compulsory retirement order was not supported by any material and as such the same was inter- fered with. Besides that the judgments on which the petitioner has placed reliance are essentially dealing with those cases of compulsory retirement where the orders were passed for extraneous rea- sons and there is no legal precedents cited by the petitioner showing indication to upset an order of compulsory retirement based on subjective satis- faction of the appointing authority without there being any semblance of proof to substantiate the allegation of malice, arbitrary exercise of power, or non-availability of any material for forming an opinion that the incumbent has outlived his utility in the services. Therefore, we do not propose to deal with all these precedents as they are clearly distinguishable.

28. The Apex Court in an authoritative pronounce-

ment in case of Pyare Mohan Lal Vs. State of Jharkhand & Ors. [(2010) 10 SCC 693], has [38] examined the matter relating to compulsory re-

tirement of a judicial officer thoroughly The Apex Court has held in clear and unequivocal terms that power to retire compulsorily a Government ser- vant is absolute provided authority concerned forms a bonafide opinion that compulsory retire- ment is in public interest. While discussing the entire case law on the subject, the Apex Court has concluded that a case of judicial officer is required to be examined treating him to be different from the other streams of the society as he is serving the State in a different capacity. The Apex Court further held that if the case of a judicial officer is considered by the Committee duly constituted by the Chief Justice, and then report of the Commit- tee is placed before the Full Court and decision is taken by the Full Court after due deliberation on the matter, there remains no doubt of chance of non-application of mind or malafide. As per the Supreme Court, a single adverse entry touching on integrity is enough to impose compulsory re- tirement. The Apex Court, while repudiating washed-off theory vis-à-vis compulsory retire- ment, made following observations in Para 24:

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24. In view of above, the law can be summarised to state that in case there is a conflict between two or more judgments of this Court, the judgment of the larger Bench is to be followed. More so, the washed-off theory does not have universal application. It may have relevance while considering the case of government servant for further promotion but not in a case where the employee is being assessed by the reviewing authority to determine whether he is fit to be retained in service or requires to be given compulsory retirement, as the Committee is to assess his suitability taking into consideration his "entire service record".

While examining the matter threadbare, the Court has held that the subjective satisfaction can be based on overall assessment of the performance of a judicial officer, on the basis of his entire service record and his general rep- utation. The observations made by the Apex Court in this behalf in Para 28 to 32 are reproduced as under:

28. It is evident from the aforesaid service record of the petitioner that he remained an average officer throughout his service career and could never improve. His out-turn had been poor; he had been given adverse entries regarding his integrity/reputation as not good in the years 1999-2000 and remarks to that effect by the Inspecting Judges in 1997 and 2001-2002.

The petitioner had made a bald assertion that the adverse entries have not yet been communicated to him. It has been repeatedly submitted by him that representations made by him against the said adverse entries had not been disposed of. Indisputably, uncommunicated adverse [40] entries could be taken into account for the purpose of assessing an officer for compulsory retirement. The petitioner has not disclosed on what dates the representations against the adverse entries had been made. The petitioner had not challenged the said adverse entries, rather he considered it appropriate to challenge only the order of compulsory retirement which has been a consequential effect of such adverse entries.

29. The law requires the authority to consider the "entire service record" of the employee while assessing whether he can be given compulsory retirement irrespective of the fact that the adverse entries had not been communicated to him and the officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement. The case of a judicial officer is required to be examined, treating him to be different from other wings of the society, as he is serving the State in a different capacity. The case of a judicial officer is considered by a committee of Judges of the High Court duly constituted by the Hon'ble the Chief Justice and then the report of the Committee is placed before the Full Court. A decision is taken by the Full Court after due deliberation on the matter. Therefore, there is hardly any chance to make the allegations of non-application of mind or mala fides.

30. Be that as it may, the service record of the petitioner revealed that he had not been promoted in the regular cadre of the District Judge as he was not found fit for the same because of the adverse entries. The petitioner was promoted as Additional District Judge on ad hoc basis and posted in the Fast Track Court. It was definitely not a promotion on merit (selection). The High Court had objectively decided to recommend [41] his compulsory retirement and the State authorities acted accordingly. No fault can be found with the decision-making process or with the decision.

31. We do not find any force in the submissions made by Shri Sunil Kumar, learned Senior Counsel appearing for the petitioner that the counter-affidavit filed by the High Court and the State reveal that certain reports called for from the District Judge had been considered, though such reports were not even available, and therefore, the affidavit to that extent is misleading. In fact, it is evident from the record that at the time of making of the note by the Registry for the Full court, it had been mentioned that report was still awaited. However, by the time the Full Court was held the report had been made available and was duly considered. Shri Ashok Mathur and Shri Anil Kumar Jha, learned counsel appearing for the respondents had placed before us the original record relating to the services of the petitioner and the report submitted by the Judicial Commissioner, Ranchi dated 5.4.2003, who after taking into consideration a large number of facts recorded the following conclusion:

"However, on confidential enquiry I have found that his general reputation is not so good, but still no one came to me with any specific case against his general reputation." Thus, the aforesaid submission made on behalf of the petitioner is preposterous.

32. Placing reliance on the judgments of this Court in M.S. Bindra and Baldev Raj Chadha Vs. Union of India, it has been canvassed on behalf of the petitioner that adverse entries had not been made in bona fide manner and as per the requirement prescribed by circulars, etc. Therefore, the consequential order of compulsory retirement is illegal. There is no factual foundation on the basis of which such an assertion can be examined, nor is there a [42] challenge in the writ petition to the said adverse entries. The petitioner sought quashing of order of compulsory retirement dated 20.5.2003 and not quashing of the adverse entries. Relief not specifically sought cannot be granted by the court. Therefore, there is no occasion for us to probe the issue further.

29. In a subsequent pronouncement, in case of Ra-

jendra Singh Verma Vs. Lt. Governor of NCT Delhi [(2011) 10 SCC 1], the Apex Court reiter- ated the same principles emphasizing the need for constant vigil over subordinate judiciary. The Court held that power of compulsory retirement can be exercised at any time and power under Ar- ticle 235 in this behalf cannot be in any manner be circumscribed by any legislation, rule, or order. The Apex Court made following observations in this behalf in Para 82:
82. As explained by this Court in Chandra Singh Vs. State of Rajasthan, the power of compulsory retirement can be exercised at any time and that the power under Article 235 in this regard is not in any manner circumscribed by any rule or order. What is explained in the said decision by this Court is that Article 235 of the Constitution of India enables the High Court to assess the performance of any judicial officer at any time with a view to discipline the black sheep or weed out the dead wood, and this constitutional power of the High Court can- not be circumscribed by any rule or order.

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30. In R.C. Chandel Vs. High Court of Madhya Pradesh & Anr. [(2012) 8 SCC 58], while con- sidering the compulsory retirement of a judicial officer in public interest, found that the order passed on recommendation by the High Court based on consideration of entire service record of the officer concerned, cannot be made subject matter of judicial review to go into adequacy or sufficiency of such materials. The Apex Court, while laying down parameters vis-à-vis a judicial officer for discharging his judicial duty, has made following observations in Para 29 of the verdict:

29. Judicial service is not an ordinary gov- ernment service and the Judges are not em- ployees as such. Judges hold the public of- fice; 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 per- son of impeccable integrity and unimpeach- able independence. He must be honest to the core with high moral values. When a liti- gant enters the courtroom, he must feel se- cured 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 so- ciety 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 [44] be above suspicion. The credibility of the ju- dicial 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 func- tions with integrity, impartiality and intellec- tual honesty.

31. On examining the matter in its entirety, the note of displeasure by the then Hon'ble Chief Justice dated 8th of January 2007, coupled with the report of the Committee constituted by the then Chief Justice recommending petitioner's compulsory re- tirement, and its unanimous approval by the Full Court in its meeting held on 20th March 2010, af- ter due deliberations persuaded us to draw an ir- resistible conclusion that decision to retire the pe- titioner compulsorily from the judicial services was taken objectively and it was a decision found- ed on public interest and consequently the same cannot be categorized as infirm by any stretch of imagination. The complete text of note of dis- pleasure, by the then Chief Justice, dated 8th of January 2007 is quoted as infra:

"There is an apparent contradiction in his stand. How could he say that fact regarding previous conviction was not brought to the no-

[45] tice? That was patently false plea. Even in the second explanation he has tried to defend himself. My displeasure may be communicated to the Officer."
The aforementioned note of displeasure by the then Chief Justice is in consonance with the intent of the power conferred on the High Court to assess the perfor-

mance of any judicial officer. The Committee, constituted by the then Chief Justice, has examined the entire service record of the petitioner and the other antecedents reflecting his image as a judicial officer and thereafter an objective decision was taken by the Committee to recommend for his compulsory retirement. The said assessment of the Com- mittee is neither based on any extraneous material, nor the same is vitiated on account of any personal bias, and its unanimous approval by the Full Court, further fortifies that the decision is per-se just and proper and cannot be faulted on the touchstone of Article 14 & 16 of the Constitution of India. This conclusion of ours is also fully endorsed by the ratio decidendi of Pyare Mohan Lal and R.C. Chandel's case (supra).

32. The contention put-forward on behalf of petition-

er, that non-supply of adverse material has preju-

diced his cause, cannot be sustained in the given [46] circumstances, because the material was placed before this Court on behalf of the High Court and we have minutely examined the entire material for evaluating the legality of the decision to com- pulsorily retire him from judicial services. There- fore, we do not feel it appropriate to discuss the legal precedents cited in this behalf on behalf of the petitioner.

33. On behalf of the petitioner, his legal representa-

tive has laid much emphasis on the circulars is- sued by the Government from time to time pre- scribing guidelines for effectuating compulsory re- tirement of Government servants. For substantiat- ing this argument, reliance is also placed on some of the legal precedents. With utmost respect, we are not impressed by this argument. The circulars issued by the State Government cannot control the power of the High Court over District Courts and the Courts subordinate thereto by virtue of Article 235 of the Constitution of India. The Con- stitutional powers of the High Court to assess the performance of any judicial officer cannot be cur- tailed by any rule or order. The powers of the [47] High Court under the said Article are not justicia- ble unless some other provision of the Constitu- tion has been violated. In view of the fact that the case of the petitioner for premature retire- ment is considered by the Committee duly consti- tuted by the then Chief Justice and thereafter on its recommendation, the Full Court has put its seal of ratification. Insistence of the petitioner for adherence of the circulars issued by the State Government in this behalf is per-se superfluous. The Circulars, referred to by the petitioner, cannot fetter the power of control vested in the High Court over District Courts and Courts subordinate thereto emanating from Article 235 of the Consti- tution.

34. Strengthening his case, the legal representative of the petitioner has tried to mollify the instance of petitioner's involvement in using unfair means during LL.M. Examination by projecting the same as a trivial incident with the mitigating factor that he was exonerated by the University. On appreci- ation of this contention, in the backdrop of the facts of the instant case, we refrain ourselves [48] from commenting on the decision of the Universi- ty for exonerating the petitioner from the said al- legation. However, the general impact of the said incident cannot be overlooked, more particularly, in the context of compulsory retirement, wherein the element of public interest is also involved. The legal position is no more res-integra that washed-off theory cannot be applied to sustain the challenge against the order of compulsory re- tirement and any adverse material against an in- cumbent can be looked into by the appointing au- thority/employer to consider the overall expedien- cy or necessity to continue the employee in the services. True it is that the University has exon- erated the petitioner from the allegation but its obvious ill-effects on the image of the judiciary have not been wiped out. The judicial services cannot be treated at par to the services of other wings of the society and any scar on a judicial of- ficer obviously reflects the image of the entire ju- diciary.

Despite our reservation for offering comments on the deci- sion of the University, we are perplexed to note a vital fact [49] that the University has taken seven long years for deciding such a trivial issue. Neither there is any material on record to show that the University was restrained from taking any decision in the matter, nor any indication at the behest of the petitioner that in his writ petition, challenging the action of the University, any interim relief was granted to him. A bare perusal of letter dated 5th of July 1991 (Annex.22), from Registrar of the University, makes it crystal clear that the University has either overturned or reviewed its earlier decision indicting the petitioner for use of unfair means dat- ed 16.02.1985 on the applications submitted by the peti- tioner on 26.12.1990 and 28.05.1991 without assigning any reason. This sort of situation is a cause of concern creat- ing suspicion about the decision of the University conveyed to the petitioner on 05.07.1991.

Reliance in this behalf can be profitably made on a decision in case of Daya Shankar Vs. High Court of Al- lahabad & Ors., Through Registrar & Ors. [(1987) 3 SCC 1]. In this case, while examining the order of removal of a Munsif & Judicial Magistrate, the Apex Court has con- cluded that allegation of using unfair means by a judicial Officer in LL.M. Examination is unworthy and unbecoming of [50] a judicial officer. The Court has held in this behalf as un- der:

"Judicial officers cannot have two stan- dards, one in the court and another outside the court. They must have only one stan- dard of rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy."

Thus, we are unable to concur with the submission of the legal representative of the petitioner and the same is here- by overruled.

35. The Apex Court way back in the year 1978, in its Constitution Bench judgment, in case of State of Uttar Pradesh Vs. Batuk Deo Pati Tripathi & Anr. [(1978) 2 SCC 102], while considering power of the High Court under Article 235, has held that control vested in the High Court over the subordinate judiciary implies power to frame rules to make the exercise of control feasible, conve- nient and effective. The Court further held that this includes power to constitute and permit a Judge or some of the Judges to act on behalf of all. The Court also held that the said rule/proce- dure of the High Court is not subversive of the in- dependence of the subordinate judiciary which is [51] what Article 235 recognizes and seeks to achieve. The Court made following observations in this be- half in Para 14 of the verdict:

14. Having given our close and anxious consideration to that question, we regret that we are unable to share the view of the majority of the High Court Full Bench that by leaving the decision of the question of the respondent's compulsory retirement to the Administrative Committee, the Court bad abdicated its constitutional function. According to the view of the majority, the act of the Court in allowing the Administrative Committee to decide that question under Rule 1 of Chapter III of the 1952 Rules is an act of "self-abnegation" and therefore void. This approach betrays, with respect, a misunderstanding of the object of Article 235. The ideal which inspired the provision that the control over District Courts and courts subordinate thereto shall vest in the High Courts is that those wings of the judiciary should be independent of the executive. Tracing the history of that concept, Hidayatullah, J., in State of West Bengal v. Nripendra Nath Baghchi has highlighted the meaning and purpose of Article 235. It is in order to effectuate that high purpose that Article 235, as construed by this Court in various decisions, requires that all matters relating to the subordinate judiciary including compulsory retirement and disciplinary proceedings but excluding the imposition of punishments falling within the scope of Article 311 and the first appointments and promotions should be dealt with and decided upon by the High Courts in the exercise of the control vested in them. A proper understanding and appreciation of this position will be conducive to a correct assessment of the situation under examination in the instant case. For, knowing that the object of Article 235 is to ensure the independence of an important wing of the judiciary, the inquiry which assumes relevance is whether the procedure sanctified by the Rules of the High Court is in any manner calculated to interfere with or undermine that independence. Does that procedure involve "self-

[52] abnegation", by conceding the right of control to any outside authority? It is pertinent, while we are on this question, to know the context in which the expression "self-abnegation" was used by this Court. In Shamsher Singh v. State of Punjab the action of the High Court in asking the State Government to depute the Director of Vigilance to hold an inquiry against a judicial officer was deprecated by this Court as an act of self-abnegation. The High Court abdicated its control over the subordinate judiciary, which includes the power to hold a disciplinary inquiry against a defaulting Judge, by surrendering that power to the executive. That, truly, was an act of self-abnegation. There is no parallel between what the High Court did in Shamsher Singh and what has been done in the instant case. Here, the decision to compulsorily retire the respondent was taken by the Judges of the High Court itself, though not by all. If some but not all Judges of the High Court participate in a decision relating to a matter which falls within the High Courts' controlling jurisdiction over subordinate courts, the High Court does not efface itself by surrendering its power to an extraneous authority. The procedure adopted by the High Court under its Rules is not subversive of the independence of the subordinate judiciary, which is what Article 235 recognises and seeks to achieve. The true question then for decision is not the one by which the majority of the Full Bench felt oppressed but simply, whether the procedure prescribed by the High Court Rules is in any other manner inconsistent with the terms of Article 235 of the Constitution.

Further approving the said procedure on the touchstone of administrative law, the Apex Court concluded that the recommendations made by the Administrative Committee to retire the employee compulsorily is neither il- legal, nor it suffers from any constitutional infirmity. The [53] said observations were made by the Constitution Bench in Para 18 of the verdict:

18. Since a Judge of the High Court or an Administrative Committee consisting of High Court Judges is, for the purposes of matters falling within Article 235, not a delegate of the High Court, the principle enunciated by S.A. de Smith in his famous work on Judicial Review of Administrative Action (3rd Edn., 1973, p. 263) that a discretionary power must, in general, be exercised only by the authority to which it has been committed has no application. The various cases discussed by the learned author have arisen, as stated by him at p. 265, in diverse contexts and many of them turn upon unique points of statutory interpretation. The true position as stated by the author is: "The maxim delegatus non potest delegare does not enunciate a rule that knows no exception; it is a rule of construction to the effect that a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scope or object of the statute." We have pointed out above that the amplitude of the power conferred by Article 235, the imperative need that the High Courts must be enabled to transact their administrative business more conveniently and an awareness of the realities of the situation, particularly of the practical difficulties involved in a consideration by the whole court, even by circulation, of every day-to-day matter pertaining to control over the District and subordinate Courts, lead to the conclusion that by rules framed under Article 235 of the Constitution the High Courts ought to be conceded the power to authorise an Administrative Judge or an Administrative Committee of Judges to act on behalf of the Court. Accordingly, we uphold the minority judgment of the Full Bench that Rule 1 of [54] Chapter 3 of the 1952 Rules framed by the Allahabad High Court is within the framework of Article 235. The recommendation made by the Administrative Committee that the respondent should be compulsorily retired cannot therefore be said to suffer from any legal or constitutional infirmity.
36. If the case in hand is examined in the light of the verdict of the Constitution Bench, then it will ipso facto reveal that the present case is at a better footing, inasmuch as, the Committee constituted by the then Chief Justice placed its recommenda- tions before the Full Court and those recommen- dations were approved by the Full Court after due deliberations unanimously. The recommenda- tions of the Full Court were thereafter forwarded to the Government for passing appropriate order. In this view of the matter, we are not inclined to interfere with the impugned order of compulsory retirement in our limited scope of judicial review.

37. The net result of the above discussion is that the in- stant writ petition sans merit, and accordingly the same is hereby dismissed. No order as to costs. (P.K. LOHRA), J. (AMITAVA ROY), CJ.

[55] arora/