Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2307 OF 2011
Pratap Singh …. Appellant
Versus
State of U.P. & Anr. ….Respondents
JUDGMENT
R.M. Lodha, J.
The appellant – a judicial officer – having not been
promoted in the substantive vacancy to Uttar Pradesh Higher
Judicial Service (for short, ‘UPHJS’) and, as a result of which, was
reverted as Civil Judge (Senior Division) is in appeal, by special
leave.
2. The appellant, after due selection, joined judicial service
in Uttar Pradesh as Munsiff on May 16, 1977 and was confirmed as
such on August 30, 1982. He became Additional Civil Judge on
January 4, 1986 and got selection grade of Rs. 3700 – 5000 with
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effect from April 1, 1990. He then became Civil Judge (Senior
Division).
3. The Allahabad High Court, on the administrative side,
in its full court meeting held on November 18, 1995, approved
promotion of the appellant in officiating capacity under Rule 22(3) of
Uttar Pradesh Higher Judicial Service Rules, 1975 (for short, ‘1975
Rules’). Pursuant to the above decision taken by the full court, a
notification was issued on June 7, 1996 promoting and posting the
appellant as Additional District and Sessions Judge, Lalitpur.
4. While the appellant was posted as Additional District and
Sessions Judge, Lalitpur, Shri Mukteshwar Prasad happened to be
District Judge, Lalitpur. The appellant was made Officer in-charge,
Nazarat by the District Judge with effect from September 10, 1996.
The appellant continued as such until March, 1997 or so. It so
happened that in the intervening night of January 30/31, 1997, some
thieves entered the residence of the appellant and tried to break
open the doors. The appellant suspected the involvement of class-IV
employees of Lalitpur Judgeship. On that day, the District Judge was
on leave and the appellant handed over an application to the Senior
Administrative Officer wherein he alleged the support of the District
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Judge to class IV employees suspected to have entered the house
of the appellant for theft. The application made by the appellant to
the Senior Administrative Officer was kept in an open envelope. The
District Judge, Lalitpur sought explanation from the appellant with
regard to the allegations made by him in his application and also
gave information of the incident to the Registrar of the High Court as
well as the inspecting Judge of Lalitpur Judgeship on February 19,
1997.
5. In the appellant’s annual confidential report (ACR) of the
year 1996-97 (June 12, 1996 to March 31, 1997), the District Judge
(Shri Mukteshwar Prasad) made the following remarks:
“
(a) Integrity of the officer whether
beyond doubt, doubtful or
positively lacking.
Beyond doubt. No
complaint received.
(b) If he is fair and impartial in
dealing with the public and bar.
No specific
complaint was
made to me.
(c) If he is cool-mind and does not
lose temper in court.
Yes
(d) His private character, if such as
to lower him in the estimation of
the public and adversely affects
the discharge of his official
duties.
No complaint
received against
his private
character.
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(e) Control over the file in the
matter of-
(i) Proper fixation of cause list. Not proper. On an
Average, he fixed
22-23 cases.
(ii) Avoidance of unnecessary
adjournments
Satisfactory
(iii) Disposal of old cases. Not satisfactory.
Disposed of one
S.T. of 1991, 2 of
1992 and 6 of 1993
out of 7 of 1991, 32
of 1992 and 36 of
1993.
(iv) Progress and disposal of
execution cases.
There were 3
execution cases of
1996 but no case
was disposed of.
One case is stayed
by the Hon’ble High
Court.
(v) Interim orders, injunctions
Being granted, refused to
retained for sufficient reasons.
Yes.
(vi) Are cases remanded on
substantial grounds?
No appeal was
remanded.
(f) Whether judgments on facts
and law are on the whole
sound, well reasoned and
expressed in good language.
Judgments of
average quality.
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(g) Whether disposal of work is
adequate (give percentage &
reasons for short disposal).
Out-turn being 132%
is above the
standard. As per
statement received
as against 133
working days, he
gave work for
175.88.
(h) Control over the office and
administrative capacity and tact.
Proper.
(i) Relation with members of the
bar [mention incidents, if any]
Normal
(j) Behaviour in relation to brother
Officers [mention incidents, if
any]
Normal
(k) Whether the officer has made
Regular inspections of his court
and Offices in his charge during
the year and whether such
inspections were full and
effective.
YES
(l) His punctuality in sitting in the
court
Punctual.
(m) Whether amenable to advice of
District Judge and other
superior Officers.
He is not amenable
at all to the advice of
the District Judge.
Reasons given
below in column no.
3.
2. Overall assessment of the merit
of the officer-out-standing, very
good, good, fair, poor.
Poor. Irresponsible
and indisciplined
officer who has no
regard for his super-
iors or truth. Details
mentioned in column
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no. 3 below.
3. Other Remarks, if any.
After taking over charge by me in this district,
the officer was appointed Officer-in-Charge, Nazarat
w.e.f. 10.9.1996. He being the next senior most officer
in the Judgeship and only Addl. District Judge at that
time, was expected to extend his full cooperation and
assistance in the affairs of the Judgeship. Since very
beginning, I found that his attitude was not
cooperative and in fact he took no interest at all for
improvement in working of Nazarat. He never came to
me in the chamber or at the residence to discuss any
problem relating to Nazarat. In the month of
November, 1996, he made a request in writing for
relieving him from the post of Officer-in-charge,
Nazarat. I summoned him and persuaded to continue
as Officer-in-charge, Nazarat. With reluctance, he
agreed to continue. Again he sent an application on
22.1.97 for removing him from the post of Officer-in-
charge, Nazarat on the ground that Sri Shanker Lal, a
Class IV employee was not transferred by me on his
oral and written request. It is noteworthy that Sri
Shanker Lal was transferred and in his place Sri
Manik Chand was posted in his court vide order dated
30.1.97. Sri Singh was highly interested in a Class IV
employee [Sri Swand Singh] and wanted his posting
in his court but he was not transferred there for some
administrative reasons. He joined the service in
August, 1996.
He always complained of non-cooperation of
Central Nazir and other officials working in the
Nazarat and passed an order also on 23.12.96 to the
effect that the Central Nazir never took round of the
courts and never checked Chowkidars. In pursuance
of this order, Central Nazir Sri Shamsher Bahadur
Srivastava took a surprise round of the Civil Court
building on 12.1.97 at about 3.35 a.m. and checked
both Chowkidars at 3.50 a.m. Both Chowkidars,
namely, Sarvasri Swank Singh and Gulab Chand
Saroj were found sleeping. He submitted his report to
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the Officer-in-charge, Nazarat to call explanation of
the Chowkidars. Sri Singh took no action against the
Chowkidars and warned them to be vigilant in future.
Sri Singh always found shirking from work and
never rendered any assistance to me in dealing with
various problems of the Judgeship. Before posting of
Sri Jai Singh, a newly promoted Addl. District Judge
in the district in the month of March, 1997, he was
senior most Addl. District Judge in the Judgeship. He,
however, did not play his role properly for the simple
reason that a Class IV employee of his choice was
not posted by me in his court.
2. Sri Singh levelled totally false and baseless
allegation against me in writing on 31.1.1997 when I
was out of station and had gone to Gwalior. In my
absence he handed over an application to Senior
Administrative Officer and did not even keep the
application in an envelope. Consequently, the
contents of the letter were well-known to all the
officials and officers working under me before my
arrival at the headquarters. He levelled accusation
against me that some thieves tried to break open the
doors of his residence in the night intervening
30/31.1.1997. He suspected the involvement of some
Class IV employees of the judgeship. According to
him the thieves were Class IV employees of the
judgeship and I was supporting them. After having
gone through the contents of the letter, I was stunned.
I sent a letter to Sri Singh and sought his reply on a
few questions. In his reply dated 6.2.97, he tried to
twist his letter dated 31.1.97. Thus the officer tried to
tarnish my image in the eyes of other officers and
officials of the Judgeship and committed an act of
gross indiscipline.
I have already communicated these facts to the
Registrar of the Hon’ble High Court of Judicature at
Allahabad as well as Hon’ble the Inspecting Judge of
Lalitpur through my D.O. letters No. 4 and
5/P.A./1997 dated 19.2.1997.
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For all the above reasons, I have rated the
officer to be most irresponsible and indisciplined.”
6. The above adverse remarks recorded by the District
Judge, Lalitpur were communicated to the appellant on May 30,
1997. On receipt of the communication, the appellant made
representation to the Registrar on June 28, 1997 and prayed that the
adverse remarks recorded by the District Judge be expunged.
7. On October 21, 1997, the appellant was communicated
by the Joint Registrar that after consideration of his representation,
the remarks recorded by the District Judge in Column No. 1(e)(iii),
1(e)(iv) for the year 1996-97 have been expunged and Column No. 2
has been substituted by the court as – ‘overall assessment – just
average’.
8. It is the appellant’s case that on July 11, 1998, he came
to know that the full court in its meeting held on that day did not
approve the appellant’s name for his appointment in the
substantive vacancy in UPHJS. The appellant submitted a
representation to the High Court on administrative side on August
19, 1998 to reconsider the decision taken on July 11, 1998. The
representation of the appellant was not favourably considered and
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on December 5, 1998 a notification was issued on the basis of the
decision taken by the full court on July 11, 1998 reverting the
appellant to the judicial service, i.e. Civil Judge (Senior Division).
9. The appellant challenged the notification dated
December 5, 1998 in a writ petition before the Allahabad High Court
at Lucknow Bench and prayed for quashing the same. He prayed
that report of the selection committee dated May 18, 1998 and
record of the decision of the full court taken on July 11, 1998 insofar
as appellant was concerned be called for and a writ of mandamus
be issued commanding the respondents to treat the appellant having
been promoted to the UPHJS and ignore the remarks made by the
District Judge in the ACR for the year 1996-97.
10. The above writ petition was contested by the
respondents.
11. The Division Bench of the High Court, after hearing the
parties, by its order dated December 21, 2009 dismissed the writ
petition.
12. We heard Mr. Dinesh Dwivedi, learned senior counsel for
the appellant and Mr. Ravi Prakash Mehrotra, learned counsel for
the respondent no. 2.
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13. From the counter affidavit filed before this Court on
behalf of respondent No. 2 – High Court of Judicature at Allahabad –
it transpires that the matter for promotion of the appellant in UPHJS
under Rule 22 (3) of the 1975 Rules was considered by the HJS
Selection Committee of three-Judges in its meeting held on
November 10, 1995 and the name of the appellant was
recommended for promotion to UPHJS in ad-hoc capacity. The
report of the selection committee was considered by the full court in
its meeting held on November 18, 1995 and the appellant’s name
was approved for promotion to UPHJS in ad-hoc capacity. The
appellant was accordingly promoted to UPHJS and given posting at
Lalitpur as Additional District and Sessions Judge. Thereafter
appellant’s matter for promotion in the substantive vacancy in
UPHJS was considered by the selection committee comprising of
three-Judges on May 18, 1998. The committee, however, did not
recommend the appellant’s name for promotion under Rule 22(1) of
the 1975 Rules in view of the remarks given by the District Judge in
the ACR for the year 1996-97. The committee referred to the
remarks of the District Judge made in column 3 that he was most
irresponsible and indisciplined officer. The report of the above
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committee was considered by the full court in its meeting held on
July 11, 1998 and his name was not approved for appointment in
UPHJS under Rule 22 (1) of the 1975 Rules. The question before
us is : whether non-approval of the appellant for promotion in the
substantive vacancy in UPHJS under Rule 22(1) of the 1975 Rules
suffers from any illegality.
14. It is not in dispute that the remarks recorded by the
District Judge, Lalitpur in the ACR for 1996-97 (June 12, 1996 to
March 31, 1997) formed the basis of non-approval of the appellant’s
name for promotion in the substantive vacancy in the UPHJS. That
the District Judge, Lalitpur rated the appellant in the ACR recorded
for the above period as an ‘irresponsible and indisciplined officer’ is
borne out from the record. Against the remarks made by the District
Judge, the appellant made a comprehensive representation to the
Registrar on June 28, 1997. It is not necessary to refer to the
representation made by the appellant in detail. Suffice it to say that
the appellant did highlight that his integrity has been found to be
beyond doubt and that in about 20 years of his judicial service, he
has been posted with 24 District Judges and except the adverse
remarks made by Shri Mukteshwar Prasad, District Judge, Lalitpur
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for the above period at no point of time any District Judge recorded
any adverse remark about his conduct, integrity or performance.
The appellant emphatically denied the observations of the District
Judge, Lalitpur, recorded in the ACR and explained the entire
episode.
15. The representation made by the appellant was
considered by the Inspecting Judge of Lalitpur District. Vide
communication dated October 21, 1997, the appellant was informed
that the adverse remarks recorded by the District Judge in column
No. 1 (e)(iii) – ‘disposal of old cases : not satisfactory” and the
adverse remarks in column no. 1 (e)(iv) –“progress and disposal of
execution cases: there were three execution cases of 1996 but no
case was disposed of” had been expunged. In the above
communication, the appellant was also informed that column no. 2
—“overall assessment of the merit of the officer – outstanding, very
good, good, fair, poor : Poor. Irresponsible and indisciplined officer
who has no regard for his superiors or truth. Details mentioned in
column no. 3 below” has been substituted by “overall assessment –
just average”. A careful reading of the communication dated October
21, 1997 leaves no manner of doubt that the adverse remarks given
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by the District Judge, Lalitpur in column no. 2 that appellant was
irresponsible and indisciplined officer for the facts stated in column
no. 3 no longer remained as it is and were substituted by “just
average”. The consideration of the remarks recorded by the District
Judge, Lalitpur by the selection committee as well as by the full court
in its meeting held on July 11, 1998 was, thus, not proper.
16. However, in the counter affidavit filed on behalf of
respondent No. 2 before this Court, in paragraph ‘C’, the complete
text of the order passed by the Inspecting Judge on August 6, 1997
on the representation of the appellant has been re-produced which
reads as follows :
“I have gone through the adverse remarks given by the
District Judge, Sri Mukteshwar Prasad in para – 1 (e)(i),
1(e)(iii), 1(e)(iv), 1(f) and 1(m) as well as in column no. 2
relating to “over all assessment” and column no. 3 relating
to “other remarks, if any”, I have also gone through the
representation preferred by the officer concerned. Looking
to the representation made by the officer concerned, I feel
that the conclusions arrived at by the District Judge in para
1(e)(i) and 1(f) do not deserve to be expunged while the
conclusions arrived at under column 1(e)(iii) and 1(e)(iv)
deserve to be expunged.
The details given by the District Judge in remarks
column no. 3 do go to indicate that Sri Pratap Singh—II is
not amenable to the advice of the former, i.e. District
Judge. As far as the over-all assessment taken to be ‘poor’
by the District Judge is concerned, I do not agree with the
conclusions arrived at by him. Instead, looking to the
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reasons given by the Judicial Officer, Sri Pratap Singh-II in
this regard, I find logic in them; since his integrity has been
described by the District Judge to be beyond doubt and his
work out-turn has been described to be above standard
then, obviously, the over all assessment could not be
‘poor’. Thus, it deserves to be expunged, and, instead,
keeping in mind the complete A.C.R. and the remarks
given by the District Judge, overall assessment can be
rated as “just average”.
Further, since remarks given by the District Judge, Sri
Mukteshwar Prasad are based on factual aspects which
had also been communicated to the Registrar of the High
Court as well as to me, the Inspecting Judge, at the
opportune time, hence, they do not deserve to be
expunged, and the representation made by the Judicial
Officer, Sri Pratap Singh-II in this regard deserves to be
rejected.”
17. On October 11, 2011, in course of hearing, Mr. Ravi
Prakash Mehrotra, learned counsel for respondent No. 2 made a
request for adjournment to enable him to seek instructions as to
whether or not along with the communication dated October 21,
1997, copy of the decision of the Inspecting Judge, as reproduced
above, was sent to the appellant. We acceded to the request of the
counsel and kept the matter for October 18, 2011. On October 18,
2011, Mr. Ravi Prakash Mehrotra, fairly stated that the copy of the
decision of the Inspecting Judge was not sent to the appellant and
he was informed of what was contained in the communication dated
October 21, 1997 only. In our view, in the above circumstances the
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text of the decision of the Inspecting Judge dated August 6, 1997
cannot be used against the appellant. It needs no emphasis that a
judicial officer has to be disciplined and must behave as a
responsible officer. Indiscipline in the judiciary cannot be tolerated.
However, as noted above, the remarks of the District Judge that the
appellant was, ‘irresponsible and indisciplined officer who has no
regard for superiors or truth’ have been expunged/substituted by the
Inspecting Judge. The effect of such expunction/substitution is that
the appellant cannot be considered an irresponsible or indisciplined
officer on the basis of remarks recorded by the District Judge. The
gravity of what has been recorded in column (3) is, thus, lost.
Moreover, the root of the problem between the two senior judicial
officers appears to be clash of ego. In the words of Samuel
Johnson, every man is of importance to himself. The observation
noted in column (3), ‘He never came to me in the chamber or at the
residence to discuss any problem relating to Nazarat’ indicates that
the District Judge was not happy with the appellant for having not
given due importance to him.
18. Be that as it may, due to consideration of the remarks
recorded by the District Judge and not taking into consideration that
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such remarks were expunged/substituted as communicated to the
appellant vide communication dated October 21, 1997, the very
consideration of the appellant’s case for promotion in the substantive
vacancy in UPHJS under the 1975 Rules by the selection committee
in its meeting dated May 18, 1998 and by the full court in its meeting
held on July 11, 1998 gets seriously and vitally affected.
19. It is important to notice that in the counter affidavit filed
on behalf of respondent no. 2, it has been stated that appellant’s
matter for promotion in the substantive vacancy in UPHJS was again
considered by the selection committee on November 24, 2004 but in
view of the matter being sub judice , it was resolved that appellant’s
name could not be considered for regular appointment under Rule
22(1) of the 1975 Rules and the above report of the selection
committee was accepted by the full court in its meeting held on
February 5, 2005.
20. In what we have discussed above, it is not necessary to
consider the submissions of the learned senior counsel for the
appellant that under Chapter III, Rule 4(B)(3) and Rule 4(C)(16) of
the Allahabad High Court Rules (Rules of the Court), 1952 framed
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under Article 225 of the Constitution of India, the District Judge had
no competence to make any remark with regard to the appellant.
21. In our view, the matter for the appellant’s promotion in
the substantive vacancy in UPHJS which was considered by the
selection committee on May 18, 1998 and by the full court on July
11, 1998 needs to be reconsidered in light of the discussion made
above and in accordance with law. Since the appellant is likely to
superannuate shortly, we expect the High Court on its administrative
side to complete this exercise as early as possible and preferably
within one month from the date of the communication of this order.
22. The appeal is allowed, as indicated above, with no order
as to costs.
………………………J
(R.M. LODHA)
….…………………………….J.
(JAGDISH SINGH KHEHAR )
NEW DELHI
NOVEMBER 15, 2011.
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