Full Judgment Text
2014:BHC-AS:22596-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO. 302 OF 2013
Smt.Shraddha Vinod Deo. ... Petitioner.
V/s.
The State of Maharashtra and another. ... Respondents.
Amol P. Mhatre for the petitioner.
P.P.Kakade, AGP for the State.
P.S.Dani for respondent No.2.
CORAM : NARESH H. PATIL AND
B.P.COLABAWALLA, JJ.
th
RESERVED ON : 18 September 2014.
th
PRONOUNCED ON : 8 October 2014.
JUDGMENT. : (PER NARESH PATIL, J.)
Rule. Rule made returnable forthwith.
Heard by consent of parties.
2. The petitioner challenges the order of her compulsory
retirement passed by the respondents. The contention of the
petitioner is that by an order dated 1st September 1990, she was
appointed as Judicial Magistrate First Class and posted at Jalgaon.
She served at Jalgaon from 1st September 1990 to 3rd March 1991.
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Thereafter she worked at various places like Wardha, Thane, Karjat,
Pune. From 2000 to 2004 the petitioner was posted as Judge,
Industrial Court, Mumbai. In the year 200708, the petitioner
served as Member, Motor Accidents Claims Tribunal, Mumbai. In
the year 2011, the petitioner was posted as Member, Family Court,
Bandra and thereafter as Additional Judge, Small Causes Court,
Mumbai. The first assured progression scale was granted to the
th
petitioner in the year 2003 and the second was granted on 14
December 2011. It is contended that Annual Confidential Reports
(“ACRs” for short) for the year 2002 to 2004 were rated as “Good”
whereas ACR of 2006 was rated as “Very Good”. The integrity of the
petitioner was found to be good on the basis of ACRs. The
petitioner has placed on record photostat copies of ACRs of the
relevant years. The petitioner has also worked as Paper Setter for
IPS and MPSC examinations. She worked as Moderator and Second
Moderator for J.M.F.C. examinations. It is the petitioner's contention
that in spite of having such a good record of service the petitioner
was compulsorily retired. The concerned remarks which were
taken into consideration were not communicated to the petitioner.
The impugned order, according to the petitioner, is arbitrary in
nature and liable to be set aside.
3. Learned counsel for the petitioner submitted that neither
a single adverse remark was communicated to the petitioner nor any
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warning was given to her. The petitioner did not face a single
departmental enquiry through out her career. She secured excellent
remark like "Noteworthy". The petitioner discharged her duty
efficiently in the place like Malegaon and tried sensitive cases.
Learned counsel referred to Maharashtra Civil Services Rules, 2008
(“MCSR” for short). Rule 5 thereof refers to the assured career
progression scale. It is submitted that benefit under the Assured
Career Progression Scale Scheme is given after five years of service
considering integrity and overall function of the judicial officer. The
petitioner, according to learned counsel, secured positive remarks
and in spite of the same the petitioner was compulsorily retired.
Learned counsel submits that the Review Committee of the High
Court had taken into consideration ACRs for the years 199495;
199596 and 2002 to 2006. It is submitted that the petitioner was
not served with any adverse remarks in her service imparted during
these six years. Neither any enquiry was conducted against the
petitioner nor any showcausenotice was issued to her regarding
allegations on account of integrity; behavior; and overall conduct of
the petitioner. Learned counsel further submitted that latest ACRs
were in favour of the petitioner. Therefore, according to learned
counsel, the confidential reports, which were taken into
consideration and not communicated to the petitioner could not
form basis for taking adverse action against the petitioner.
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4. Learned counsel appearing for respondent No.2
submitted that the petitioner cannot claim, as a of right, continuation
of service beyond the age of 55 years. The Administration considers
overall profile of the candidate before taking decision. The Review
Committee comprising of Hon'ble the Chief Justice and senior most
Judges of the High Court had verified the record and reports and
taken an appropriate decision in the public interest and larger
interest of the institution. According to learned counsel, judicial
scrutiny in such matters is of restricted nature. The Review
Committee is entitled to look into tangible and intangible material.
The petitioner would be getting all the service benefits and,
therefore, no prejudice on that account is caused to the petitioner.
The decision of the Review Committee has been confirmed by His
Excellency the Governor of Maharashtra. On merits it is submitted
that even noncommunication of confidential reports also can be
considered while Review Committee would assess a particular case.
Learned counsel submitted that considering the ratio laid down by
the Apex Court and in the facts of the case, the decision taken by the
Review Committee does not call for any interference. Learned
counsel placed reliance on the affidavitinreply filed by respondent
No.2 in support of his submission.
5. We have perused the record placed before us. We have
also perused the relevant provisions of MCSR and the Maharashtra
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Judicial Service Rules, 2008 (“Judicial Service Rules” for short) and
also the caselaws cited supra.
6. Rule 19 of the Judicial Service Rules reads as under:
“19. Retirement in public interest.
Notwithstanding anything contained in these
Rules the Governor shall, on the recommendation
of the High Court, if he is of the opinion that it is
in the Public Interest so to as, have the absolute
right to retire any member of the service when he
attains the age of 50 years, 55 years or 58 years
by giving him notice of not less than three
months in writing or three months pay and
allowances in lieu of such notice.”
7. The High Court is entitled to retire a judicial member
from service in public interest after considering individual case when
he/she attains 50 years, 55 years or 58 years of age. Perusal of the
decision of the Review Committee shows that ACRs of the year 1994
95; 199596; and 2002 to 2006 were taken into consideration by the
committee. The committee had considered reputation of the officer;
her conduct; integrity; and behavior. The committee found that
actionable material was reported against the petitioner and,
therefore, the committee decided to retire the petitioner prematurely
from judicial service in public interest in view of provisions of rule 19
of the Judicial Service Rules read with rule 10(4) of MCSR.
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8. Respondent No.2 in para7 of its affidavitinreply has
contended as under:
“07. The contents of paragraph 6 (which is
numbered as 5 in the Petition) of the said Petition,
in so far as the present Petitioner having been
posted at Malegaon for the period of June 2008 to
June 2011 is concerned, the same is correct. It is
also matter of record that the disposal of the cases
by the Petitioner was found to be “Noteworthy”,
but that does not mean that the conduct of the
Petitioner at that point of time was above board.
In fact, there were several complaints received
against the Petitioner during her tenure at
Malegaon and her entire conduct as judicial
officer in that tenure has been found to be
controversial. The said complaints were gone
into by the concerned Committee and in fact, even
Disciplinary Committee was constituted for
holding inquiry into such charges. The reports
were also called from the Principal District Judge
Nashik, in respect of the said complaints, which
included complaints regarding corruption and not
doing duty in appropriate manner as also not
having cordial relations with the bar. At that point
of time, as the Petitioner was already above the
age of 50 years, it was also decided to place the
case of the present Petitioner before the Review
Committee as per provisions of Rule 19 of the said
Rules. Thus, merely because disposal of cases by
the Petitioner was noted as “Noteworthy” does not
absolve the Petitioner of other responsibilities as
judicial officer.”
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In para13 of the reply, respondent No.2 has contended that though
it was true that the petitioner was granted second assured career
progression scale in the year 2011, it was not a reflection of overall
service of the petitioner which was subject matter of review under
the provisions of rule 19 of MCSR. In para18, the deponent has
contended that the petitioner has completed age of 56 years and 11
months and, therefore, was amenable for conducting review as
contemplated in rule 19 of MCSR.
9. The learned counsel for the petitioner has relied upon
following judgments:
In Bainkuntha Nath Das v. Chief Distt. Medical Officer , (1992) 2
SCC 299, the Supreme Court has observed as under:
“34. The following principles emerge from the
above discussion:
(i) An order of compulsory retirement is not a
punishment. It implies no stigma nor any
suggestion of misbehavior.
(ii) The order has to be passed by the
government on forming the opinion that it is
in the public interest to retire a government
servant compulsorily. The order is passed on
the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in
the context of an order of compulsory
retirement. This does not mean that judicial
scrutiny is excluded altogether. While the
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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 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. “
In State of Gujarat v. Umedbhai M. Patel , AIR 2001 SC 1109 the
Apex Court has held as under:
“11. The law relating to compulsory retirement
has now crystallized into definite principles, which
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could be broadly summarised thus:
(i) Whenever the services of a public servant
are no longer useful to the general administration,
the officer can be compulsorily retired for the sake
of public interest.
(ii) Ordinarily, the order of compulsory
retirement is not to be treated as a punishment
coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary
to chop off deadwood, but the order of
compulsory retirement can be passed after having
due regard to the entire service record of the
officer.
(iv) Any adverse entries made in the
confidential record shall be taken note of and be
given due weightage in passing such order.
(v) Even uncommunicated entries in the
confidential record can also be taken into
consideration.
(vi) The order of compulsory retirement
shall not be passed as a short cut to avoid
departmental enquiry when such course is more
desirable.
(vii) If the officer was given a promotion
despite adverse entries made in the confidential
record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be
imposed as a punitive measure.”
In Ishwar Chand Jain v. High Court of Punjab & Haryana , AIR
1988 SC 1395, Apex Court observed as under:
“14. Under the Constitution the High Court has
control over the subordinate judiciary. While
exercising that control it is under a constitutional
obligation to guide and protect judicial officers.
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An honest strict judicial officer is likely to have
adversaries in the mofussil courts. If complaints
are entertained on trifling matters relating to
judicial orders which may have been upheld by
the High Court on the judicial side no judicial
officer would feel protected and it would be
difficult for him to discharge his duties in an
honest and independent manner. An independent
and honest judiciary is a sine qua non for Rule of
law. If judicial officers are under constant threat of
complaint and enquiry on trifling matters and if
High Court encourages anonymous complaints to
hold the field the subordinate judiciary will not be
able to administer justice in an independent and
honest manner. It is therefore imperative that the
High Court should also take steps to protect its
honest officers by ignoring illconceived or
motivated complaints made by the unscrupulous
lawyers and litigants. Having regard to facts and
circumstances of the instant case we have no
doubt in our mind that the resolution passed by
the Bar Association against the appellant was
wholly unjustified and the complaints made by Sh.
Mehalawat and others were motivated which did
not deserve any credit. Even the vigilance judge
after holding enquiry did not record any finding
that the appellant was guilty of any corrupt
motive or that he had not acted judicially. All that
was said against him was that he had acted
improperly in granting adjournments.”
In Sukhdev Singh v. Union of India, (2013) 9 SCC 566 , the Apex
Court observed as under:
“8. In our opinion, the view taken in Dev Dutt
v. Union of India, (2008) 8 SCC 725, that every
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entry in ACR of a public servant must be
communicated to him/her within a reasonable
period is legally sound and helps in achieving
threefold objectives. First, the communication of
every entry in the ACR to a public servant helps
him/her to work harder and achieve more that
helps him in improving his work and give better
results. Second and equally important, on being
made aware of the entry in the ACR, the public
servant may feel dissatisfied with the same,
Communication of the entry enables him/her to
make representation for upgradation of the
remarks entered in the ACR. Third,
communication of every entry in the ACR brings
transparency in recording the remarks relating to
a public servant and the system becomes more
conforming to the principles of natural justice.
We, accordingly, hold that every entry in ACR
poor, fair, average, good or very good must be
communicated to him/her within a reasonable
period.”
10. The learned counsel appearing for respondent No.2 has
relied upon following judgments:
R.C.Chandel v. High Court of Madhya Pradesh , (2012) 8 SCC 58 ,
the Supreme Court observed as under:
“27. That the Appellant's challenge to 1993 and
1994 entries was unsuccessful right upto this
Court is not in dispute. However, the learned
Senior Counsel for the appellant has placed heavy
reliance upon the observations made by the
Division Bench in its judgment and order dated
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25.02.1997, particularly, paragraph 69 thereof
wherein the Division Bench held that adverse
remarks on the reputation in the relevant years
should not haunt him all through his judicial
career and hamper his prospects for all times. We
are afraid the above observations by the Division
Bench while upholding the remarks in no manner
restricted the power of the Full Court in taking
into consideration these adverse remarks in its
exercise to find out whether or not the Appellant
should be retained in service after he has attained
the required length of service. The consideration
of the Appellant's case for grant of selection grade
and super time scale stood on different footing.
The entire service record and overall profile of a
judicial officer guide the High Court in reaching
its satisfaction about the continuance or otherwise
after the judicial officer has attained the required
length of service or age. When the entire service
record of a judicial officer is under consideration,
obviously the High Court is alive to such judicial
officer's having got promotion(s), increments, etc.
during the service.
….. ….. ….. ….. ….. …..
29. Judicial service is not an ordinary
government service and the Judges are not
employees as such. Judges hold the public office;
their function is one of the essential functions of
the State. In discharge of their functions and
duties, the Judges represent the State. The office
that a Judge holds is an office of public trust. A
Judge must be a person of impeccable integrity
and unimpeachable independence. He must be
honest to the core with high moral values. When a
litigant enters the courtroom, he must feel
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secured that the Judge before whom his matter
has come, would deliver justice impartially and
uninfluenced by any consideration. The standard
of conduct expected of a Judge is much higher
than an ordinary man. This is no excuse that since
the standards in the society have fallen, the
Judges who are drawn from the society cannot be
expected to have high standards and ethical
firmness required of a Judge. A Judge, like
Caesar's wife, must be above suspicion. The
credibility of the judicial system is dependent
upon the Judges who man it. For a democracy to
thrive and rule of law to survive, justice system
and the judicial process have to be strong and
every Judge must discharge his judicial functions
with integrity, impartiality and intellectual
honesty.
In Pyare Mohan Lal v. State of Jharkhand , (2010) 10 SCC 693 ,
the Apex Court observed as under:
“18. Thus, the law on the point can be
summarised to the effect that an order of
compulsory retirement is not a punishment and it
does not imply stigma unless such order is passed
to impose a punishment for a proved misconduct,
as prescribed in the statutory rules. (See Surender
Kumar v. Union of India, (2010) 1 SCC 158). The
Authority must consider and examine the overall
effect of the entries of the officer concerned and
not an isolated entry, as it may well be in some
cases that in spite of satisfactory performance, the
authority may desire to compulsorily retire an
employee in public interest, as in the opinion of
the said Authority, the post has to be manned by a
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more efficient and dynamic person and if there is
sufficient material on record to show that the
employee "rendered himself a liability to the
institution", there is no occasion for the Court to
interfere in the exercise of its limited power of
judicial review.
….. ….. ….. ….. …..
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
differently 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
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.”
In Rajendra Singh Verma v. Lt.Governor of NCT of Delhi , 2011
(1) SCALE 315 , the Apex Court observed as under:
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“122. Normally, the adverse entry reflecting on the
integrity would be based on formulations of
impressions which would be result of multiple
factors simultaneously playing in the mind.
Though the perceptions may differ in the very
nature of things there is a difficulty nearing an
impossibility in subjecting the entries in the
confidential rolls to judicial review. Sometimes, if
the general reputation of an employee is not good
though there may not be any tangible material
against him, he may be compulsorily retired in
public interest. The duty conferred on the
appropriate authority to consider the question of
continuance of a judicial officer beyond a
particular age is an absolute one. If that authority
bona fide forms an opinion that the integrity of a
particular officer is doubtful, the correctness of
that opinion cannot be challenged before courts.
When such a constitutional function is exercised
on the administrative side of the High Court, any
judicial review thereon should be made only with
great care and circumspection and it must be
confined strictly to the parameters set by this
Court in several reported decisions. When the
appropriate authority forms bona fide opinion that
compulsory retirement of a judicial officer is in
public interest, the writ Court under Article 226
or this Court under Article 32 would not interfere
with the order.
123. Further this Court in M.S. Bindra's case
(Supra) has used the phrase 'preponderance of
probability' to be applied before recording adverse
entry regarding integrity of a judicial officer. There
is no manner of doubt that the authority which is
entrusted with a duty of writing ACR does not
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have right to tarnish the reputation of a judicial
officer without any basis and without any
'material' on record, but at the same time other
equally important interest is also to be
safeguarded i.e. ensuring that the corruption does
not creep in judicial services and all possible
attempts must be made to remove such a virus so
that it should not spread and become infectious.
When even verbal repeated complaints are
received against a judicial officer or on enquiries,
discreet or otherwise, the general impression
created in the minds of those making inquiries or
the Full Court is that concerned judicial officer
does not carry good reputation, such discreet
inquiry and or verbal repeated complaints would
constitute material on the basis of which ACR
indicating that the integrity of the officer is
doubtful can be recorded. While undertaking
judicial review, the Court in an appropriate case
may still quash the decision of the Full Court on
administrative side if it is found that there is no
basis or material on which the ACR of the judicial
officer was recorded, but while undertaking this
exercise of judicial review and trying to find out
whether there is any material on record or not, it
is the duty of the Court to keep in mind the nature
of function being discharged by the judicial officer,
the delicate nature of the exercise to be performed
by the High Court on administrative side while
recording the ACR and the mechanism/system
adopted in recording such ACR.”
11. The view of the Apex Court is that judicial service is not
an ordinary government service and the Judges are not employees as
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such. The office that the Judge holds is an office of public trust.
The Review Committee while exercising powers conferred under the
provisions of law would take into consideration all these aspects
which are integral part of judicial service. The Review Committee
had, accordingly, taken into consideration the service record and
other available record of the petitioner. After consideration of the
service record and the material placed before the Review Committee
decision was taken to retire the petitioner prematurely. This
decision was taken in public interest. Interference by this Court in
exercise of writ jurisdiction in such matters is of a limited extent and
is to be made in exceptionally rare cases.
12. In the facts of the case and considering the record placed
before us, we do not find that the impugned order of compulsory
retirement of the petitioner is vitiated, in any way, on the grounds
raised by the petitioner. We do not find that the petitioner has made
out any case for reconsideration of the decision, taken by the Review
Committee, by this Court in exercise of its writ jurisdiction.
13. Taking into consideration the facts and material placed
before us, the view adopted by the Apex Court, and the principles
governing Review Committee's powers to retire judicial officers in
public interest, we are of the opinion that the Review Committee
reached appropriate decision in accordance with law and in public
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interest. In the facts of the case, we are of the view that the
petitioner has failed to make out any case for causing interference in
the view adopted by the Review Committee comprising of Hon'ble
the Chief Justice and senior most Judges of the High Court.
14. The petition is dismissed. Rule stands discharged. No
order as to costs.
(B.P.COLABAWALLA, J.) (NARESH H. PATIL, J.)
Sanjay Nanoskar, P.S..
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