Full Judgment Text
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PETITIONER:
J. D. SHRIVASTAVA
Vs.
RESPONDENT:
STATE OF M.P. & OTHERS
DATE OF JUDGMENT24/01/1984
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
REDDY, O. CHINNAPPA (J)
MISRA, R.B. (J)
CITATION:
1984 AIR 630 1984 SCR (2) 466
1984 SCC (2) 8 1984 SCALE (1)125
CITATOR INFO :
R 1987 SC 948 (7)
RF 1992 SC1020 (22)
ACT:
Fundamental Rules Rule 56(3)(a) Compulsory Retirement-
Adverse entries in confidential reports relating to a remote
period-Reliance on-Whether valid.
HEADNOTE:
The appellant was a State Judicial Service officer in
the grade of Additional District & Sessions Judge.
Consequent upon the decision of the State Government to
reorganise the Higher Judicial Service it was decided that a
number of posts of the cadre of Additional District &
Sessions Judges be abolished and the incumbents of those
posts be absorbed as District & Sessions Judges. The High
Court at one of the High Court meetings held to screen the
officers in the cadre of Additional District & Sessions
Judges, decided to retire the appellant compulsorily on his
at tanning the age of SS years under Rule 56(3)(a) of the
Fundamental Rules. It was also decided not to recommend him
for promotion to the cadre of District and Sessions Judges.
The appellant was served with an order of compulsory
retirement dated August 28, 1981.
The Division Bench of the High Court dismissed the
appellant’s writ petition impugning his compulsory
retirement.
In the appeal to this Court, it was contended that the
High Court had made the recommendation to retire the
appellant compulsorily without applying its mind and that
the decision was based on collateral considerations and was
arbitrary. On behalf of the High Court it was contended that
the personal confidential records of the appellant were
considered by the Full Court Meeting and the decision to
retire the appellant under Fundamental Rule 56(3)(a) was
taken after due consideration of the entire record.
Allowing the appeal:
^
HELD: 1. It would be an act bordering on perversity to
dig out old files to find out some material to make an order
against an officer. Dependence on entries about 20 years
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before the date on which the decision of compulsory
retirement was taken cannot placed for retiring a person
compulsorily, particularly when such person concerned has
been promoted subsequent to such entries. [474H; 475A]
D.Ramaswami v. State of Tamil Nadu, [19811 2 S.C.R. 75
referred to.
2. The power to retire a Government servant
compulsorily in public interest in terms of a service rule
is absolute provided the authority concerned forms
467
an opinion bona fide that it was necessary to pass such an
order in public interest. But if such decision was based on
collateral grounds or if the decision was arbitrary, it is
liable to be interfered with by Courts. [469 B-C]
Union of India v. Col. J.N. Sinha Anr., [1971] 1
S.C.R. 791; Union of India v. M.E. Reddy & Anr., [1980] 1
S.C.R. 736; Swami Saran Saksena v. State of U.P., [1980] 1
S.C.R. 923; Baldev Raj Chadha Y. Union of India & ors [1981]
1 S.C.R. 430; and Brij Bihari Lal Agarwal v. High Court of
Madhya Pradesh & Ors. [1981] 2 S.C.R. 297 referred to.
In the instant case the High Court relied on some adverse
remarks relating to 1959-60 or thereabout. It was true that
in the early part of the appellant’s career the entries did
not appear to be quite satisfactory. Some were and some were
not good and some were of a mixed kind. But being reports
relating to a remote period, they are not quite relevant or
the purpose of determining whether he should by retired
compulsorily or not in 1981. The scrutiny should have been
confined to the reports for about ten years prior to the
date on which action was proposed to be taken. All the
reports except for 1972-73 and 1973-74 were good and quite
satisfactory. Even in the reports of the said years there
was nothing to doubt his integrity. He was punctual in
attending to his work. The reports for the years 1976-77 to
1980-81 speak in favour of the appellant and not against
him. A perusal of the said reports showed that there was
nothing against him. In these circumstances it was
impossible to take the view that the appellant was liable to
be compulsorily retired. [470 E- H]
3. The resolution of the High Court recommending to the
Government that the appellant should be compulsorily retired
and the impugned order passed under Fundamental Rule
56(3)(a) are quashed. The resolution of the High Court that
the appellant was not fit for promotion to the cadre of
District and Sessions Judges is also quashed. [474 E]
JUDGMENT:
CIVIL. APPELLATE JURISDICTION: Civil Appeal No. 3429 of
1982
Appeal by Special leave from the Judgment and order
dated the 29th July, 1982 of the Madhya Pradesh High Court
in Misc. Petition No. 1169 of 1981.
G.L. Sanghi and Ashok Srivastava for the Appellant.
D. Y.S.. Chitale, Mrs. A K. Verma, D.N. Misra, A.M.
Dittia and A K. Sanghi for the Respondents
The Judgment of the Court was delivered by
VENKATRAMIAH J. The appellant is a judicial officer of
the State of Madhya Pradesh, who would have ordinarily
retired on January 31, 1984 on attaining 58 years of are, He
was appointed
468
as a Munsiff-Magistrate in the erstwhile State of Bhopal in
1953. On reorganisation of States on November 1, 1956, he
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became a member of the Judicial Service of the State of
Madhya Pradesh. He was promoted as an Additional District
Sessions Judge on January . 8, 1974 and was confirmed in
that post with effect from November 25, 1971. Consequent
upon the decision of the State Government to reorganise the
Higher Judicial Service of the State of Madhya Pradesh in
accordance with the advice of the High Court of Madhya
Pradesh 101 posts Of the cadre of Additional District &
Sessions Judges came to be abolished and the incumbents of
those posts were to be absorbed as District & Sessions
Judges as per Government Memorandum dated February 24, 1981.
In the . issue of the said Memorandum the High Court of
Madhya Pradesh decided to screen the officers in the cadre
of Additional District & Sessions Judges for the purpose of
making recommendation to the State Government about the
promotion of selected officers to the cadre of District &
Sessions Judges. For this purpose, Full Court Meetings of
the Madhya Pradesh High Court were held on February 27 and
28, 1981 and March 1, 1981. The case of the appellant was
also considered in that connection It is stated that at
those meetings, the High Court first resolved to scrutinise
the cases of all the judicial officers who were to attain
the age of 55 years in the year, 1981. In the course of such
scrutiny the High Court decided on February 27, 1981 to
retire the appellant compulsorily on his attaining the age
of SS years under Rule 56(3) of the Fundamental Rules. On
March l, 1981 it decided not to recommend him for promotion
to the cadre of District & Sessions Judges. Accordingly, the
State Government was addressed by the High Court to retire
the appellant compulsorily. The appellant thereafter
continued as an Additional District & Sessions Judge until
he was served with the order of compulsory retirement dated
August 28, 1981. Aggrieved by that order, the appellant
filed a writ petition before the High Court. The petition
was dismissed by a Division Bench of the High Court on July
29, 1982. This appeal is preferred by special leave against
the judgment of the High Court,
Clause (a) of the Fundamental Rule 56(3) as amended in
1976 which governs the case of the appellant reads thus:
"F.R.56(3)(a) A Government servant may, in the
public interest, be retired at any time after he
attains the age of fifty five years without assigning
any reason by giving him a notice in writing
469
It is contended that the order of compulsory retirement
is unsustainable on various grounds and the principal ground
urged is that the High Court had made the recommendation to
retire the, appellant compulsorily without applying its mind
to the case as required by law that it was a decision based
on collateral considerations and that it was arbitrary.
It is now firmly settled that the power to retire a
Government servant compulsorily in public interest in terms
of a service rule is absolute provided the authority
concerned forms an opinion bona fide ’that it is necessary
to pass such an order in public interest. It is equally well
settled that if such decision is based on collateral grounds
or if the decision, is arbitrary, it is liable to be
interfered with by courts. (See Union of India v. Col. J.N.
Sinha & Anr). We have also gone through the following
decisions, namely, Union of India v. M.E. Reddy & Anr.,
Swami Saran Saksena v. State of U.P., Baldev Raj Chadha v.
Union of India of, Brij Bihari Lal Agawral v. High Court of
Madhya Pradesh & Ors., and D. Ramaswami v. State of Tamil
Nadu which have a bearing on the question-before us. We
shall now proceed to deal with the facts, of the case in
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the light of the principles enunciated in the above
decisions.
In Para 10 of the counter affidavit of Shri A.K.
Pandey, Additional Registrar of the High Court of Madhya
Pradesh filed before this Court, it is stated as follows .
"It is not disputed that Full Court Meeting was
held on 27th/28th February, as well as Ist March, 1981
to consider the cases of Additional District & Sessions
Judges for promotion in the Higher Judicial Service. It
is also not disputed that the petitioner stood at
serial No. 10 in the seniority list of Additional
District Sessions Judges, It is also not disputed that
he was confirmed as Additional District & Sessions
judge in August, 1976. The personal confidential record
of the petitioner is placed before this Hon’ble Court
and (it) speaks for itself (Annexure R-XI to XXXVIII).
470
It is wrong to say that any extraneous consideration
operated in the Full Court Meeting against the
petitioner and it is wrong to say that the resolutions
in the Court Meeting were unjust, arbitrary or mala
fide. As already pointed out, the decision was taken in
Full Court Meeting after consideration of the entire
record of the petitioner, The decision to retire the
petitioner under Fundamental Rule 56(3) was after due
consideration of the entire record of the petitioner.
(Confidential entries are Annexures R-XT to XXXVIII)."
On going through the said counter affidavit we are
satisfied that apart from the confidential records, nothing
else appears to have been relied on by the High Court to
reach the decision that the appellant should be compulsorily
retired. We shall now proceed to Examine the confidential
rolls maintained in respect or the appellant.
The Confidential Reports in respect of the appellant
are placed before us. lt is stated by the Registrar of the
High Court in Para 13 of the counter affidavit that the
appellants performance for 28 years was taken into
consideration for screening under Fundamental Rule 56(3),
The High Court has relied on some adverse remarks relating
to 1959-60 or thereabouts, lt is true that in the early part
of his career, the entries made do not appear to be quite
satisfactory. They are of varied kinds. Some are good, some
are-not good and some are of a mixed kind. But being reports
relating to a remote period, they are not quite relevant for
the purpose of determining whether he should be retired
compulsorily or not in the year ]981, as it would be an act
bordering on perversity to dig out old files to find out
some material to make an order against an officer. We
therefore, confined our scrutiny to the reports made in
respect of the appellant for about ten years prior to the
date on which action was taken against him to retire him
compulsorily. We find that all of them except for 1972-73
and 1973-74 are good and quite satisfactory. Even in 1972-73
and 1973-74 it is stated that there was nothing to doubt his
integrity and that he was punctual in attending it to his
work. It may be noted, that the appellant was promoted as an
Additional District & Sessions Judge on January 8, 1974 and
was also confirmed with effect from November 25, 1974 by an
order passed in 1976. Any adverse report in respect of an
earlier period unless it had some connection with any event
which took place subsequently cannot, therefore, reasonably
form a basis for forming an opinion about the work of the
appellant.
471
We give below a few relevant extracts from the Confidential
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Reports for the period subsequent to March 31, ]974 .
Year : 1975
On confidential enquiries from the members of the
Bar and from other sources nothing was found against
him in respect of his integrity. During surprise check
he was found on the board in time. Enquiries from other
sources also disclosed that he usually comes in time
and does not rise early and engages himself in judicial
work. This impression was gathered from judicial diary
also.
After scrutiny of the cases, the following
impression was gathered. Knowledge about rules and
orders, law and procedure is adequate but the number of
the interlocutory application is sometimes not entered
in the margin of the connected order-sheet in red ink.
Judgments are good with proper discussion of evidence.
Interlocutory matters are not kept unduly pending for
long time. Rules regarding pleadings, and evidence etc.
are followed. Punishments were adequate. Examination of
accused is proper. Charges framed are proper.- Record
is legible
Control and supervision over the staff is
satisfactory. Judicial diary calls for no particular
comments. His relations with the Bar are cordial, with
no complaints of any misbehavior with any litigants His
average disposal during the period in question was of
very good category. There is nothing else to comment in
particular.
Year : 1976
Knowledge of law and judicial Good
capacity:
Remarks about his promptness in Promptness satisfactory
the disposal of cases:
Remarks about reputation of integ- Nothing was found against
rity and impartiality: his integrity or
impartiality.
General Remarks: He was mostly punctual
and
472
did not rise early.
Judgments were proper
and contained the
required discussion of
evidence Charges and
examination of accused
and issues were proper.
Promptness in framing of
issues was marked in
recent months. Control
and super vision over the
staff was satisfactory.
Settling dates should not
normally be of more than
two weeks as was notice
in certain cases.
Interlocutory matters
were generally not kept
unduly pending.
Net Result: Good
Year 1976-77
Knowledge of Law and Judicial Satisfactory
capacity:
Remarks about his promptness in Generally prompt
the disposal of cases:
Percentage of average monthly 148. 1/2,%
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disposal
Behaviour towards members of the Cordial
Bar and Public:
General Remarks: Satisfactorily managing
heavy and exclusive civil
file. Mostly punctual.
Net Result: Good
Year 1977-78
Knowledge of Law and Judicial Good
capacity:
Entry against almost all
the
473
columns in the Report-
Good
General Remark : Has good grasp of facts
and law. Judgments in
proper form and well
written.
Net Results Good
Year 1979-80
(a) Shri Shrivastava begins his judicial work
punctually at 11.00 A.M. and works throughout the Court
hours. So far, it appears that he has arranged his
Cause List judiciously fixing civil work for the day.
This Judge understands that there can be no subsequent
pleadings except by way of amendment of pleadings. In
other words, he understands the purport of order 8 rule
9 and order 6 rule 7 of the Civil Procedure Code. He
also understands what is pleading i e. Order 6 rule 1
of the Civil Procedure Code as compared with oral
statement. He so far appears to be equally conversant
with order 17 rule I of the Civil Procedure Code i.e.
adjournment is only granted for sufficient cause. He
does no. find any difficulty in applying law relating
to pleadings and interlocutory matters. So far, his
procedure conforms to rules or pleadings, filing of
documents, framing of issues and recording of evidence.
(b) So far, on the criminal side, he frames
charges with care, records evidence with such care and
prepares examination of accused with equal care.
(c) So far, he makes a neat and legible record. He
generally supervises the work of ministerial staff.
(d) His judgments, both on civil and criminal, so
far, appear to be well written. He is prompt in his
disposals including doing work therein. His work, as a
whole, so far, has been found to be of high quality. He
also takes up civil work. His relations with the Bar,
so far, appear to be cordial.
(e) The above remarks are subject to the D.O. No.
462/C. Rs/1979 Jabalpur dated 6.3.80 of the High Court.
474
(Note: The Memo. sent to the appellant in March,
1980 Only informed him of two remarks-(1) that the did
not dispose of Sessions trials quickly and (2) that he
did not follow the amended provisions under order 39
rule 3 of the Civil Procedure Code. The Memo. also
disclosed that the appellant did not write judgments in
civil appeals according to the pattern prescribed; that
Sessions trials were not conducted quickly and that
(he) granted unduly long adjournments of about a month
or so for examination of accused and defence witnesses.
The appellant sent a prompt reply to it oil March 28,
1980 refuting the correctness of the above remarks. We
have gone through the said reply. On going through the
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facts mentioned therein, we feel that the remarks
against him appear to be totally uncharitable. It shows
that the appellant has disposed of more number of cases
than what ordinarily could be disposed of during the
relevant period. We are not informed of what action was
taken on his prayer for expunging the said remarks).
Year: 1980-81
His out turn-during the year was about 200 percent. The
quality of work may be classed as good. ’B’ category.
No specific complaints were received against him about
his behaviour or integrity."
The above reports no doubt speak for themselves as
stated in the counter affidavit of the additional Registrar.
But they all speak in favour of the appellant and not
against him. A persual of these reports shows that there was
nothing against the appellant which necessitated the action
which was taken against him. In the state of the above
record it was impossible to take the view that the appellant
was liable to be compulsorily retired, unless there was any
other circumstance which was adverse to him. We have found
it necessary to incorporate in this judgment the relevant
confidential remarks in great detail only to show that the
action of the High Court was not called for. We may state
here that the learned counsel for the High Court very fairly
stated that there was no other circumstance against the
appellant during the period subsequent to 1971 which would
support the order of compulsory retirement. From what has
been stated we find that the decision taken by the High
Court in respect of the appellant is arbitrary as it was
mainly based on the entries that were made about 20 years
before the date on which the decision was
475
taken Dependence on such stale entries cannot be placed for
retiring a person compulsorily, particularly when the
officer concerned has been promoted subsequent to such
entries, as held by this Court in D. Ramaswami’s case
(supra). In that case one of us (Chinnappa Reddy, J.)
observed thus at pages 79-80:
"In the face of the promotion of the appellant
just a few months earlier and nothing even mildly
suggestive of ineptitude or inefficiency thereafter, it
is impossible to sustain the order of the Government
retiring the appellant from service. The learned
Counsel for the State of Tamil Nadu argued that the
Government was entitled to take into consideration the
entire history of the appellant including that part of
it which was prior to his promotion. We do not say that
the previous history of a Government servant should be
completely ignored, once he is promoted. Sometimes past
events may help to assess present conduct. But when
there is nothing in the present conduct casting any
doubt on the wisdom of the promotion, we see no
justification for needless digging into the past."
In the result the judgment of the High Court is
reversed and the resolution of the High Court recommending
to the Government that the appellant should be compulsorily
retired and the impugned order passed thereon under
Fundamental Rule 56(3) are quashed. The resolution of the
High Court that the appellant was not fit for promotion to
the cadre of District & Sessions Judges is also quashed. The
High Court should now consider in the light of this decision
whether the appellant was entitled to be promoted as a
District & Sessions Judge as on the date on which his
immediate junior was promoted and make appropriate
recommendation to the State Government. The appellant is
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entitled to all consequential financial and other benefits
as if the order of compulsory retirement had not been
passed.
The appeal is accordingly allowed with costs.
N.V.K. Appeal allowed.
476