Lal Bahadur v. State Of U.P & Ors.

Uma Nath Singh, J.:— This writ petition has been filed with the following prayers for issuance of:

“(i) a writ, order or direction in the nature of certiorari for quashing the impugned order dated 17.05.2005 passed by respondent No. 1 (the State of U.P) and order dated 23.05.2005 passed by respondent No. 2 (the High Court of Judicature at Allahabad);

(ii) a writ, order or direction in the nature of mandamus directing the respondents to reinstate the petitioner on his post as Addl. District and Sessions Judge with further direction to pay his salary and allowances from the date of compulsory retirement to the date of joining, and

(iii) any other, further orders of general nature in the facts and circumstances with direction to pay costs of proceedings.”

2. Brief background of the case leading to filing of this writ petition are that the petitioner was selected as a Munsif (now known as Civil Judge, Junior Division), in the examination of year 1979 and joined as such on 04.11.1981 at Gorakhpur. He was confirmed as Munsif on 20.02.1988, and later promoted to Class-I post as an Additional Chief Judicial Magistrate on 17.02.1990 He was subsequently promoted on ad hoc basis as stop gap arrangement to the post of Additional District and Sessions Judge vide a Govt. notification (No. 1616.D-a-2000-3211/99 dated 20.05.2000), under Rule 22(3) of the Uttar Pradesh Higher Judicial Service Rules, 1975 on the recommendation of the High Court (respondent No. 2 herein). Petitioner joined as an Additional District and Sessions Judge at Ghazipur on 30.05.2000, and remained posted there till 18.07.2003 During that period he also served as Special Judge (N.D.P.S). Subsequently, vide Government Notification No. 2260.n-4-2000-32(1)/2005 dated 13.04.2005 he was recruited by promotion to the post of Additional District & Sessions Judge under Rule 22(1) of the Uttar Pradesh Higher Judicial Service Rules, 1975. In pursuance thereof, Court's Notification No. 793.DR(S)/2005 dated 17.05.2005 was issued. However, the same was withdrawn vide Court's Notification No. 952.DR(S)/2005 dated 23.05.2005

3. However, in order to weed out the corrupt and inefficient officers who have become ‘dead wood’ a Screening Committee was constituted and the petitioner having been found to have outlived the utility for the judicial post was compulsorily retired on the recommendations of Screening Committee of the High Court vide the impugned order dated 17.05.2005, under Rule 56 of the Fundamental Rules, in the absence of any express provision in the U.P Higher Judicial Service Rules, 1975 to govern the same.

4. We have heard learned counsel for parties and perused the records.

5. The petitioner has challenged the impugned order of compulsorily retiring him on the ground that during his 24 years of service career as a Judicial Officer, his integrity was never doubted nor had he become a ‘dead wood’ to be weeded out at this stage of service. He was compulsorily retired without providing an opportunity of hearing, which is violative of the provisions of Article 309 of the Constitution of India. Materials said to have been placed reliance by the Screening Committee were never supplied to the petitioner, and thus, the procedure adopted by the Screening Committee does not seem to be transparent as expected of the higher functionaries. Adverse entries relied upon by the respondents are also entirely different from the entries communicated to the petitioner, and moreover, the entries for the years 1991–92, 1994–95 and 1995–96 had never been communicated to the petitioner. Besides, the entries communicated for the year 2003–04 are totally different from what have been shown in the report.

6. It is also asserted in the petition that judiciary is a separate organ of the State, and thus, the executive which passed the notification of compulsory retirement was under a bounden duty to have applied its mind independently, which it has failed to do so in the case of petitioner. A clear picture about the service profile of petitioner could have been gathered only on reading the entire ACRs but not from the report prepared by twisting the facts and highlighting the entries that suited to authorities for weeding out the petitioner from subordinate judiciary. If the petitioner failed to decide the required number of cases during some years, it was all because of his wrong posting contrary to the policies of High Court in outline courts (Courts established in remote places like Sub-Divisions away from the sitting of District Courts).

7. Petitioner has claimed that he was in no manner responsible for the shortage of disposal, due to court works being struck by lawyers. The adverse entries referred to and relied upon for arriving at its satisfaction by the Screening Committee have no bearing on and relation to the issue of compulsory retirement. The petitioner was retired in a hurried manner without adhering to the procedures prescribed under the law in the evening of his service career at an age of over 54 years. Now, the petitioner may not get any alternative employment and he has the responsibility to look after and financially support his three marriageable daughters, out of whom, one is still a student. Respondent No. 1 (the State of U.P), partly declined the recommendations made by respondent No. 2 (the High Court) which had also denied the advance payment of three months' salary to the petitioner as required under the Law, while passing the order of compulsory retirement in lieu of notice. Thus, it would show the presence of elements of malice on the face of record. Name of the petitioner was recommended by a Committee of the High Court for being promoted as an Additional District and Sessions Judge on 13.04.2005, in accordance with the U.P Higher Judicial Service Rules, 1975, and the same was also accepted by the Govt. of U.P vide its Notification bearing No. 2260/2-4-2005-32(1)/2005. Thus, the petitioner was appointed and posted as such at Lucknow on a regular and substantive basis as an Additional District and Sessions Judge. Since the petitioner had remained posted at Lucknow itself before being appointed on a regular and substantive basis, therefore, he was not transferred outside on regular promotion. However to his utter dismay and disappointment, the petitioner was immediately found unfit for continuing as a judicial officer in the assessment made by the Screening Committee, and thus, soon after his promotion on a regular and substantive basis, he was compulsorily retired. Further, according to learned counsel for petitioner, after passing of the order of compulsory retirement, respondent No. 2 (the High Court) also withdrew, vide the order dated 23.05.2005, the order of promotion on substantive basis to the post of Additional District Judge given to the petitioner by the Government, which is an act of arbitrariness and the Order was passed without jurisdiction and is thus per se illegal and void.

8. Learned counsel for the petitioner also attributed the element of mala fide to the Screening Committee in recommending the case of petitioner for compulsory retirement. According to learned counsel, the minimum requirement for appointment as a judge is the unimpeachable integrity of the officer and at no stage of his service career, the integrity of petitioner was certified to be doubtful. Thus, there was no material whatsoever available before the Screening Committee as well as the Full Court of High Court to have recommended the pre-mature retirement of petitioner. Learned counsel also submitted that the impugned order of compulsory retirement as well as the order of withdrawal of promotion on the substantive basis to the post of Additional District Judge without affording an opportunity to the petitioner was passed in violation of the principles of natural justice. Learned counsel placed heavy reliance on a Division Bench judgment of this Court reported in 2008 (26) LCD 1073, to contend that the premises which should exist during the screening for passing the order of compulsory retirement have been considered threadbare while keeping in view the principles enunciated in the judgments of Hon'ble the Supreme Court rendered in the cases of Baikuntha Nath Das v. Chief District Medical Officer, Baripada, [(1992) 2 SCC 299] : ((1992) 2 SCC 299 : AIR 1992 SC 1020), and State of U.P v. Lalsa Ram, [(2001) 3 SCC 389] : ((2001) 3 SCC 389 : AIR 2001 SC 1137 : 2001 All LJ 692), apart from other judgments referred to in the said judgment. Learned counsel for the petitioner submitted that in the Division Bench judgment of this Court is encyclopaedic on the point in question, wherein it has been held by the Division Bench that any adverse entry prior to promotion on merit-cum-seniority would stand washed off and cannot be looked into as a relevant material in order to retire a person compulsorily. Learned counsel for the petitioner submitted that as the petitioner was promoted in the cadre of U.P Higher Judicial Services vide the order of promotion dated 17.05.2005, any adverse entry that existed prior to the said date, thus, could not have been looked into being of no legal consequence at all. Learned counsel also submitted that the petitioner was not afforded any opportunity of hearing before the cancellation of notification issued in regard to the promotion of petitioner. According to learned counsel this act was illegal per se on the part of respondents and in support of his submissions he also referred to in addition to above the following judgments:—

(i) Shridhar v. Nagar Palika, Jaunpur, 1990 Supp SCC 157 : AIR 1990 SC 307;

(ii) Govind Saran Dwivedi v. Union of India, 1984 (2) LCD 243;

(iii) Chandrika Prasad Upadhyaya v. District Inspector of Schools, Jaunpur, 1983 (1) LCD 150 (DB);

(iv) Deepak Gulati v. Allahabad Development Authority, 1986 U.P.L.B.E.C 734 (D.B), and

(v) Shrawan Kumar Jha v. State of Bihar, 1991 Supp (1) SCC 330 : AIR 1991 SC 309.

9. On the other hand, learned counsel for the respondents contended that the petitioner has not furnished any specific details to attribute mala fide to any member of the Full Court or the Screening Committee, and thus, it is only a bald allegation without any substance which deserves to be dismissed without paying any heed thereto. Learned counsel also submitted that for the purpose of screening at the relevant stage, the Review Committee takes into consideration the entire service record, and as in the past seven years the performance of petitioner was found to be below the prescribed standard, he was declared as a ‘dead wood’. Learned counsel further submitted that the censure entry in respect of 1990, had been communicated vide Court's D.O letter as per resolution dated 11.09.1990, passed by the Administrative Committee. Besides, the High Court had also passed strictures against the petitioner in a Criminal Misc. Application No. 19858 of 1993 (Complaint Case No. 3435/1993- Ajai Kumar Verma v. S. Subramanium). Learned counsel also submitted that the fundamental Rule 56(I)(c), does not stand superseded by the U.P Judicial Officers (Retirement on Superannuation) Rules, 1992 because the 1992 Rules only deal with a retirement on superannuation and not a case of premature retirement, as envisaged by the provisions of Fundamental Rule 56(I)(c). Thus, only Fundamental Rule 56(I)(a), providing the age of retirement on superannuation, stands superseded by the 1992 Rules. Learned counsel in support of his contention placed reliance on a judgment of Hon'ble the Apex Court rendered in the case of Nawal Singh v. State of U.P, reported in (2003) 8 SCC 117 : AIR 2003 SC 4303 : (2003 All LJ 2491) (Paras 3-I, 3-III, 7 & 8). Learned counsel also submitted that the nature of judicial service is totally different from other services, and in support of this contention he also referred to and placed reliance upon the judgments of Hon'ble the Apex Court rendered in (i) All India Judge's Association v. Union of India, (1993) 4 SCC 288 : (AIR 1993 SC 2493); Biswanath Prasad Singh v. State Of Bihar., (2001) 2 SCC 305; and also Nawal Singh v. State of U.P (supra). He also submitted that the incidence of compulsory retirement is not a punishment and in support he placed reliance on the judgment of Hon'ble the Supreme Court in the cases of Union of India v. M.E Reddy ((1980) 2 SCC 15 : AIR 1980 SC 563) and also the judgments in Nawal Singh & Baikunth Nath Das (supra). Learned counsel further submitted that such judges who do nothing are not retained in service. He placed reliance on the judgments of Hon'ble the Apex Court in the cases of S. Ram Chandra Raju v. State of Orissa, 1994 Supp (3) SCC 424 (Para 6) : (1994 Supp (3) SCC 424 : AIR 1995 SC 111); State of U.P v. Batuk Deo Tripathi, (1978) 2 SCC 102 : (1978 All LJ 477); State of West Bengal v. Nripendra Nath Bagchi; (1966) I SCR 771 (Paras 9, 10 & 17) : (AIR 1966 SC 447), and Nawal Singh v. State of U.P (supra).

10. As per the counter-affidavit filed on behalf of the High Court, it has been reiterated that the order of compulsory retirement impugned herein, has been passed in a bona fide exercise of powers in the public interest on an overall objective assessment of the en tire service records of the employee under screening and it has also been mentioned that each case of compulsory retirement is to be considered on its own facts, and there cannot be a parity between the cases of two individuals, hence, the impugned order does not amount to violation of Article 14 of the Constitution of India. That apart, the impugned order passed in bona fide exercise of powers and in public interest is neither punitive nor stigmatic, and further, there is no violation of Article 21 of the Constitution of India.

11. Rule 56(c) of Uttar Pradesh Fundamental Rules is the relevant provision that governs the matter of compulsory retirement. On reproduction, it reads as:

“56(a) to 56(b)……………

56(c) Notwithstanding anything contained in clause (a) or clause (b), the appointing authority may, at any time, by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty-five years or after he has completed qualifying service of twenty years.”

12. Besides, Rule 56(2) of the Uttar Pradesh Fundamental Rules also being relevant is reproduced below:

“2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under Clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration.

(a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis; or

(b) any entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry; or

(c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965.”

13. Thus, Rule 56(c) read with sub-rule (2) thereof vests in the State Government an absolute right/power to retire an employee after he attains the age of 50 years on the happening of certain events, namely that the employee has attained the age of 50 years, and the order is not in violation of the conditions as embodied in the said Rule, thus, the question of violation of any legal right of the petitioner does not and cannot arise in this case. It has also been averred that the factum of the doctrine of natural justice being not available to an employee so retired compulsorily now stands well settled. The whole purpose of the Rule is to weed out worthless officers without any punitive extremes. Reliance has also been placed on the observations made by Hon'ble the Supreme Court in the case of S. Ram Chandra Raju (1994 Supp (3) SCC 424 : AIR 1995 SC 111) (supra). As per the said observations, administration to be efficient must not be manned by drones, do-nothings, incompetents and unworthies. They may not be delinquent, who must be punished, at the same time they may be a burden on the administration; if by insensitive, insouciant, unintelligent or dubious conduct impede the flow or promote stagnation. Sub-rule (3) of Rule 56 of the U.P Fundamental Rules provides that the expression ‘appointing authority’ means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required to retire.

14. Besides, the judgment of Hon'ble the Apex Court rendered in the case of All India, Judges' Associations v. Union of India, (1993) 4 SCC 288 : (AIR 1993 SC 2493), has also been referred to and relied upon particularly with reference to observations that the judicial service is not a service in the sense of ‘employment’. The Judges are not the employees. As members of the judicial service, they exercise the sovereign judicial powers of the State. Since the judges perform a function that is utterly divine and the officers of the subordinate judiciary have the responsibility of building up of the case appropriately to answer the cause of justice, therefore, the judicial service cannot afford to suffer continuance in service of persons who have lost their utility or are of doubtful integrity. In the case of S. Ram Chandra Raju (supra), it has also been observed that in a country where speed, sensitivity, probity and non-irritative public relations and enthusiastic creativity are urgently needed, paper-logged processes and callous cadres are the besetting sin of the Administration. It is in public interest to retire a never-do-well. 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 to augment efficiency in the judicial service. This constitutional power of the High Court is not circumscribed by any rule or order. The idea of entrusting with High Court the control over subordinate judiciary under Article 235 of the Constitution of India has been elucidated in the judgment of Hon'ble the Supreme Court in State of U.P v. Batuk Deo Pati Tripathi, (1978) 2 SCC 102 : (1978 All LJ 477). It was in order to ensure that the subordinate judiciary should be independent of the executive. Tracing the history of that concept, Hon'ble M. Hidayatullah, J. (as his Lordship then was) in the State of West Bengal v. Nripendra Nath Bagchi; (1966) 1 SCR 771 : (AIR 1966 SC 447), has highlighted the meaning and purpose of Article 235. It is in order to effectuate the high purpose that Article 235 requires that all matters relating to the subordinate judiciary including compulsory retirement and disciplinary proceedings should be dealt with and decided upon by the High Courts in exercise of the control vested in them.

15. The decision to decide compulsory retirement was taken in a high level committee of Judges, constituted by the order of the then Acting Chief Justice which consisted of five Judges of this Court in order to screen/decide, whether any of such judicial officers who have attained the age of 50 years deserves compulsory retirement having become unbecoming of the public interest or obstructing the efficiency in public services. The Committee took into account the entire material on service records, character roll or confidential reports of 542 judicial officers who as on 31.03.2005 had attained the age of 50 years, and vide its report dated 02.04.2005 recommended that 28 officers including the petitioner be retired compulsorily. It is also the averment on behalf of the High Court that such a decision is taken on an overall assessment of the entire career profile in order to form a bona fide opinion in the public interest to retire such an officer from service who has out lived his utility and whose continuance in Government service would be detrimental to public interest. After the report of Screening Committee dated 02.04.2005 was placed before the Full Court vide the order of the Chief Justice dated 13.04.2005, the Full Court in its meeting held on 30.04.2005, on consideration of the report, passed the following resolution;

“The full Court is of the unanimous view that the report dated 02.04.2005 of the Hon'ble Screening Committee consisting of Hon'ble Mr. Justice Jagdish Bhalla, Hon'ble Mr. Justice B.S Chauhan, Hon'ble Mr. Justice A.K Yog, Hon'ble Mr. Justice Pradeep Kant and Hon'ble Justice S.S Kulshrestha be accepted in toto and that consequential steps be taken as expeditiously as possible.”

16. It was only in pursuance of the resolution dated 30.04.2005 of the Full Court meeting, a Courts' D.O letter No. C-278.CF(B)/2005 dated 02.05.2005 was sent to the Chief Secretary, Govt. of U.P, recommending compulsory retirement of the petitioner under Rule 56 of the Fundamental Rules. Thus, the Government of U.P issued an order of his compulsory retirement vide its Memorandum (O.M No. 2695.II-04-05-22(6)/2005) dated 17.05.2005 The said Memorandum of the Government dated 17.05.2005 was served upon the petitioner, and thus, he stood compulsorily retired under Fundamental Rules 56(c) of the Uttar Pradesh Fundamental Rules. As regards the service profile of petitioner in brief (vide Para 23) the deponent has averred as:

“That the petitioner (Sri Lal Bahadur-I) joined as Munsif, Gorakhpur on 04.11.1981 He was confirmed on the post of Munsif on 20.02.1988 Later on he was promoted to the post of Civil Judge/Chief Judicial Magistrate and posted as Additional Chief Judicial Magistrate, Gonda, on 17.02.1990 Vide Government Notification No. 1616.II-4-2000-32(1)/99 dated 20.05.2000, the petitioner was for a short term recruited by promotion to the post of Additional District & Sessions Judge as a stop-gap arrangement under Rule 22(3) of the Uttar Pradesh Higher Judicial Service Rules, 1975. Subsequently, vide Government Notification No. 2260.II-4-2000-32(1)/2005 dated 13.04.2005 he was recruited by promotion to the post of Additional District & Sessions Judge under Rule 22(1) of the Uttar Pradesh Higher Judicial Service Rules, 1975. In pursuance, Court's Notification No. 793.DR(S)/2005 dated 17.05.2005 was issued. However, the same was withdrawn vide Court's Notification No. 952.DR(S)/2005 dated 23.05.2005”

17. Way back in the year 1982–83 itself, when the petitioner was posted as Munsif, Gorakhpur, the then District Judge, Gorakhpur, had recorded certain adverse remarks in his ACR which were communicated to the petitioner. On consideration of the remarks recorded by the District Judge, Gorakhpur, final remarks as below were recorded by the Full Court for the year 1982–83 as:

“Disposal much below the standard being 44.5%. Judicial work reported to be satisfactory. Though attention on old cases is perceptible, disposal of execution cases has to be speeded up. Office control and administrative capacity reasonable. Relations with the Bar and brother officers cordial. Inspections irregular. Amenable to the advice of the District Judge who has remarked that the officer is poor in disposal of work, but has every chance of improvement keeping in view the quality of his work. Integrity certified.

The final remarks were thus communicated to the petitioner vide Court's D.O letter No. C-519/85 dated 26.04.1985 through the then District Judge, Gorakhpur.

18. Even for the year 1983–84 also, the petitioner had earned further adverse remarks recorded by the District Judge, Gorakhpur. Again on consideration of the remarks against the petitioner recorded by the District Judge, Gorakhpur, final remarks were recorded as:

“Disposal inadequate being 91.3%. According to the District Judge his judicial work needs improvement. The District Judge further adds that the officer was not impartial in his dealings with the members of the Bar. During my inspection in March, 1984 some fairly senior members of the Bar complained to me that the officer was arbitrary in passing orders particularly in cases remanded to him for reconsideration. It was further complained that the officer was rough and rude to them. Thereupon I had asked the officer to see that he does not give any cause for such complaints. The District Judge, however, informed me that the officer had not shown any indication of improvement. Inspections carried out by the officer were, however, regular and effective. On an overall assessment the District Judge says that he is a fair officer and that if he were to acquire judicial approach he would prove to be a good officer. Integrity is certified.”

19. These adverse remarks were communicated to the petitioner vide Court's D.O letter No. C-1515/85 dated 28.10.1985 through the then District Judge, Azamgarh.

20. In respect of the conduct of the judicial officer during his inspection at Farrukhabad in the month of August, 1990; the Administrative Judge noticed that the petitioner made certain remarks and gestures which were unbecoming of a judicial officer and reflected a great deal of impertinence. The Administrative Judge also proposed a censure entry for being placed in the character roll of the petitioner. The matter was' placed before the Administrative Committee of the High Court which in its meeting held on 11.09.1990 resolved that the censure entry as given by the Administrative Judge be approved. The censure entry on reproduction reads as:

“Sri Lal Bahadur, A.C.J.M, Farrukhabad is hereby censured for the act and conduct of impertinence which he showed in the meeting of the Hon'ble Administrative Judge with the Judicial Officers of the district during inspection tour of the year 1990–91.”

21. Thus the censure entry was placed in the character roll of the petitioner, and he was informed vide Court's D.O letter No. C-1016/90, dated 17.09.1990 through the then District Judge, Farrukhabad.

22. For the Inspection year 1990–91, the work and conduct of the petitioner earned the following adverse remarks:

“Disposal below standard being 90.4%. The District Judge reported that he took charge on 07.06.1990 and the Court was newly created and the files Were received by transfer. District Judge further reported that number of cases were not available for disposing. The officer should improve his disposal. He made only one inspection on 15.12.1990 Relation with the Bar and brother officer satisfactory. He was censured for the act and conduct of impertinence, which he showed in the meeting of the Hon'ble Administrative Judge with the Judicial Officers of the District during inspection tour. The District Judge has rated him as a good officer but in my opinion he is fair officer. Integrity was certified by the District Judge.

23. The petitioner was informed about the remarks vide Court's D.O No. C-815/1994 dated 25.08.1994, through the then District Judge, Deoria.

24. For the inspection year 1991–92, during his posting as Chief Judicial Magistrate/[Additional Chief Judicial Magistrate, Farrukhabad, the District Judge, Farrukhabad, had recorded the following adverse remarks against the petitioner in column 1(f) and 1(g) of the A.C.R as:

1(f) Whether judgment on facts and law are on the whole sound, well reasoned and expressed in good language: Generally so but in bail matters he is in the habit of crossing the bounds of his jurisdiction in some cases. (g). Whether disposal of work is adequate (give percentage and reasons for short disposal, if any): 92.28% (with steno from April-1991 to January, 1992 and without steno from February to March, 1992) REASONS FOR SHORT QUOTA: (1) Transfer to another Court, (2) Lawyers' strike, (3) Conciliatory proceedings and (4) the quota prescribed for case u/S. 125, Cr. P.C and u/S. 7/16, P.F.A Act is less than the actual time devoted).

25. Even for the inspection year 1992–93, the District Judge, Farrukhabad recorded adverse remarks against the petitioner in column No. 1(g) and 3 of his ACR as:

(g) Whether disposal of work is adequate (give percentage and reasons of short disposal, if any) 67.06% Initially the pendency was 2968. A major portion of it consisted of case u/S. 125, Cr. P.C A substantial amount of time had to be devoted to Conciliatory proceedings. Disposal of execution cases of whole district except Kannauj. A number of cases had to be dismissed after recording a substantial portion of evidence due to compromise and default of the applicant. (3) Other remarks, if any: Like previous two years this year too he has given much less outturn than required quota with almost the same kind of explanation for short disposal. The Chief Judicial Magistrate has also given him annual remarks regarding Short disposal, though according to him his Court was furnished with sufficient criminal work. Annual remarks of the C.J.M is enclosed herewith as Annexure No. 1.

26. For the inspection year 1993–94, the District Judge, Bulandshar recorded adverse remarks against the petitioner in column No. 1(g) of his ACR as:

1(g) Whether disposal of work is adequate (give percentage and reasons of short disposal, if any) Inadequate being 98.13% only. Explanation appended on the self Assessment statement.

27. During his posting as Additional Chief Judicial Magistrate, Kasia, Deoria from 01.06.1993 to 15.06.1993, the petitioner had passed summoning order and had also issued coercive process to compel the attendance of accused persons in Criminal Complaint Case No. 3435 of 1993 under Sections 447/120-B, IPC-Ajai Kumar Verma v. S. Subramanium. When the matter came up in High Court by way of Criminal Misc. Application No. 19858 of 1993 under Section 482, Cr. P.C, to pray for quashing the summoning order as well as the criminal proceedings, the High Court (Hon'ble Mr. Justice K.L Sharma) sent a report dated 15.03.1995 recording therein as below:

“While disposing of Criminal Misc. Application No. 3435 of 1993, S. Subramanium v. State under Section 482, Cr. P.C, I have found that the officer working as A.C.J.M, Kasiya in the distinct of Deoria on 06.11.1993 whose name may be ascertained from your own record, has not acted judiciously in accordance with law before passing the order of summoning and before issuing the non-bailable warrants against the Chairman and other functionaries of the Central Bank of India in the aforesaid complaint case. It appears that he does not know the basic principles of law, does not read the complaint and statements of the witness and other documents. He does not apply his mind either to the record or to the provisions of law and passed order in a mechanical manner without care to see that the order to be passed by him is most likely to effect the dignity, reputation, personal liberty and propriety of the person against whom the process is being issued. These remarks be placed in the character roll of the officer concerned after perusal by the Hon'ble Inspecting Judge of the Session Division, Deoria.”

28. Accordingly the matter was placed before the Hon'ble Inspecting Judge, concerned for perusal. Again during that posting as Additional Chief Judicial Magistrate, Kasia, Deoria, the then District Judge, Deoria had recorded Annual Confidential Remarks for the year 1994–95 having certain adverse remarks. Those remarks were also approved by the Full Court and the petitioner was informed accordingly vide Court's D.O letter No. C-1374/1995 dated 11.12.1995 through the then District Judge, Jhansi. The adverse remarks recorded in column 1(g), 1(k) and 2 are extracted hereinunder:

1(g) Whether disposal of work is adequate (give percentage and reasons for short disposal, if any) The actual working days of the P.O were 174-3/10 and he gave 128-11/120 days work and his turn over is 73.56% according to the P.O According to the P.O he decided 23 cases u/Sec. 125, Cr. P.C and he had taken out-turn of these cases @ 1.½ cases per day. The P.O had taken two days work @ 2 cases per day for four cases decided u/Sec. 125, Cr. PC, in order to show that the P.O had taken @ 2 cases per day for four cases u/Sec. 125, Cr. P.C decided by the P.O Photostat copies of all the quarterly statements are being attached for perusal of the Hon'ble High Court. If these four cases were decided after contest, then the P.O should have taken out-turn @ 1.½ cases per day, as prescribed, but he did not do so, and it appears that the said 4 cases u/Sec. 125, Cr. P.C were not decided after full contest, and thus the out-turn of the P.O is inflated. According to the P.O his turn over is 73.56% while the Sr. Administrative Officer has reported that the out-turn of the P.O is 73.48%. The out-turn of the P.O is much below the prescribed standard. A stenographer was provided to the P.O 1(k) Whether the officer has inspected his office regularly & also the office in his charge, during the year under report, and whether such inspections are full & satisfactory. The P.O did not inspect his office in the quarter ended on 30.06.94 He inspected his office for the quarter ended on 30.09.94, and for the quarter ended on 31.12.94 and for the quarter ended on 31.03.95, and his inspection notes are satisfactory. He was officer-in-charge of Nazarat, Kasia, He did not inspect Nazarat, Kasia. 2. Overall assessment of the merits of the officer outstanding, very good, good, fair, poor. Poor.

29. Further, in the Annual Confidential Re-marks for the year 1995–96 against the petitioner certain adverse remarks were made by the District Judge, Jhansi in column No. 1(g) and 1(k) as:

1(g) Whether disposal of work is adequate? (give percentage and reasons for short disposal, if any) 34% as Addl. C.J.M Kasia (Deoria) (1.4.95 to 15.6.95). 102.80% as 1st Addl, C.J.M, Jhansi. (from 21.6.95 to-31.3.96). Thus his total turnover is 87.92%. The out-turn of P.O is much below the prescribed standard. A Stenographer is provided to the P.O Explanation given by the officer for short disposal is not satisfactory. 1(k) Whether the officer has made regular inspections of his court and offices in his charge and whether such inspections were full and effective? The P.O did not inspect his office in quarter ended on 30.9.95 He is also officer-in-charge, Criminal Copying Department. He did not inspect this department in the quarter ended on 31.12.1995

The said remarks were communicated to the petitioner.

30. For the inspection year 1998–99, also certain adverse remarks were recorded in the Annual Confidential Reports of the Judicial Officer by the District Judge, Hardoi in column No. 1(g) of his A.C.R as:

1(g) Whether disposal of work is adequate (give percentage and reasons for short disposal, if any) In this district, according to S.A form, out of 134.7 working days, the officer has given an out-turn of 139.59 days. His percentage of work is 103.6% (Explanation for below standard work done, is attached herewith).

31. For the inspection year 2002–03, the High Court had recorded adverse remarks about the work and conduct of petitioner as below:

“Disposal: 126.04%, as shown by the officer, is incorrect and misleading. The calculation of actual working days has wrongly been made by the officer. In the statement (Annexure-2 to the self-assessment) furnished by the officer, while calculating the actual working days, he has excluded 22 days, during which period the lawyers were on strike. The period during which the lawyers were on strike could not have been excluded from the actual working days, as per the directions of the High Court, vide Circular dated 20th August, 1998. The aforesaid Circular, inter alia, says, “The Hon'ble Court has directed that the Courts should continuously function and no credit in the quantum of work fixed by the Hon'ble Court shall be given to the presiding officers on account of such strike”. Similarly, he has excluded 39 days as Misc. days, during which period misc. work and misc. cases were done. He has again taken credit of 19.54 days as ‘Criminal Misc. days’ and excluded the same from the actual working days. After excluding 229.04 days, he calculated the actual working days during the period under review (1.4.2002-31.3.2003) as 135.96 days, out of which he has given 171.50 days work. These working figures has been deliberately given by the officer so as to show at least the minimum required quantum of work. The officer has misconducted himself by furnishing wrong statement of work done.

The overall performance of the officer is not satisfactory. A poor officer.

Since the District Judge reported that the integrity of the officer is beyond doubt, his Integrity is certified.”

32. The said remarks were communicated vide Court's D.O letter No. C-570.CF(C)/2004, dated 10.08.2004 through the then District Judge, Lucknow.

33. Besides, the Full Court recorded the following adverse remarks about the work and conduct of petitioner for the year 2003–04 (period 01.04.2003 to 18.07.2003):—

“Disposal: 45%, below the prescribed standard. The officer was posted in the judgeship during the period 1.04.03 to 18.7.03 and thereafter, he was transferred to Lucknow Judgeship. However, during the aforesaid period he gave 22.50 days work out of 50 actual working days, which is inadequate. The officer has furnished no explanation for low disposal during the first quarter. The officer has made efforts to dispose of old cases. His relations with members of the Bar and brother officer were cordial. The overall performance of the officer is good. A good officer.”

34. And finally the Full Court in its meeting held on 30.04.2005 passed the following resolution:

“Considered the report dated 2.4.2005 of the Hon'ble Screening Committee consisting of Hon'ble Mr. Justice Jagadish Bhalla, Hon'ble Mr. Justice B.S Chauhan, Hon'ble Mr. Justice A.K Yog, Hon'ble Mr. Justice Pradeep Kant and Hon'ble Mr. Justice S.S Kulshrestha.

The Full Court is of the unanimous view that the report dated 2.4.2005 of the Hon'ble Screening Committee consisting of Hon'ble Mr. Justice Jagdish Bhalla, Hon'ble Mr. Justice B.S Chauhan, Hon'ble Mr. Justice A.K Yog, Hon'ble Mr. Justice Pradeep Kant and Hon'ble Mr. Justice S.S Kulshrestha be accepted in toto and that consequential steps be taken as expeditiously as possible.”

35. Thus, according to the respondents on the basis of all the aforesaid, it is clear that the petitioner had several adverse entries to his discredit, which were also communicated to him. That apart, the High Court has placed reliance on the observations of Hon'ble the Supreme Court in Civil Appeal Nos. 2898, 2920 and 7347 of 2001-Nawal Singh's case, ((2003) 8 SCC 117 : AIR 2003 SC 4303 : 2003 All LJ 2491) (supra). Hon'ble the Apex Court in the said judgment vide the order dated 23.09.2003 had expressed the hope that the High Courts would take appropriate steps regularly for weeding out the dead-wood or the persons polluting justice delivery system. It has been denied by the High Court in its counter-affidavit as incorrect that Hon'ble the Apex Court had issued any direction, for constituting a Screening Committee for the purposes of weeding out the corrupt and dead wood from the subordinate judiciary. Hon'ble the Apex Court in the case of All India Judges Association, ((1993) 4 SCC 288 : AIR 1993 SC 2493) (supra), provided for enhancement of age of retirement of judicial officers from 58 to 60 years and in that context the following observations were made:

“The benefit will be available to those who, in the opinion of the respective High Courts, have a potential for continued useful service. It is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate Committees of Judges of respective High Courts constituted and headed by the Chief Justice of the High Courts and the evaluation shall be made on the basis of the judicial officer's past record of service, character rolls, quality of judgments and other relevant matters.”

36. In the case of Bishwanath Prasad Singh (supra), Hon'ble the Apex Court in Para 7 has further clarified the position as:

“…the extended age of superannuation of 60 years shall be a benefit available to judicial officers subject to their satisfying the test of suitability at the evaluation or assessment to be made by the High Courts in accordance with the judgment of the Supreme Court. Such evaluation is independent of and other than an assessment undertaken for compulsory retirement in public interest, which could be resorted to earlier or later also.”

37. In the case of Nawal Singh ((2003) 8 SCC 117 : AIR 2003 SC 4303 : 2003 All LJ 2491) (supra), Hon'ble the Supreme Court has made it clear that the benefit of the increase of the retirement age to 60 years shall be available only to such judicial officers who have a potential for continued useful service. There is no embargo on the competent authority to exercise its power of compulsory retirement under Rule 56 of the Fundamental Rules. The observation of Hon'ble the Supreme Court would read as:

“Therefore, there is no embargo on the competent authority to exercise its power of compulsory retirement under Rule 56 of Fundamental Rules. As stated above, we have arrived at the conclusion that because of the increase in retirement age, rest of the Rules' providing for compulsory retirement would not be nugatory and are not repealed. Hence, it was open to the High Court to follow the procedure for exercising the power under Rule 56(c) and the procedure prescribed in Explanation (2-A) requires that such order should be in public interest and the appointing authority may take into consideration any material relating to such officer.”

38. As regards the exercise of powers under Rule 56(c) read with sub-rule (2) of the U.P Fundamental Rules, the provisions of the Rules would apply in the facts and circum-; stances of this case for the reason that the provisions of Rule 34 of the Uttar Pradesh Higher Judicial Service Rules, 1975 only deal, with the regulation of other matters as below:

“In regards to the matters not specifically covered by these rules or by special orders, persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the, affairs of Uttar Pradesh.”

39. In the case of Baikunth Nath Das ((1992) 2 SCC 299 : AIR 1992 SC 1020) (supra), the question of compulsory retirement not being stigmatic and passed in public interest to retire a government servant compulsorily has been dealt with as:

“(i) An order of compulsory retirement is not a punishment. It implies no 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 Government.

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement.

(iv) The Government (or Review Committee, as the case may be) shall have to consider the entire record of service before taking decision in the matter.

(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 circumstances by itself cannot be a basis for interference.”

40. In view of the law settled by Hon'ble the Supreme Court on the compulsory retirement, as above, there is no violation of Articles 309 and 311 of the Constitution of India and thus the petitioner is not be entitled to have an opportunity of hearing before passing the order of compulsory retirement. Hon'ble the Apex Court has also dealt with the issue of compulsory retirement in a subsequent judgment reported in 1994 Supp (3) SCC 593 : AIR 1995 SC 1161, State of U.P v. Bihari Lal in Para 4 thereof which on reproduction reads as:

“In an appropriate case, there may not be tangible material but the reputation of officer built around him could be such that his further continuance would imperil the efficiency of the public service and would breed indiscipline among other public servants.

Therefore, the Government could legitimately exercise their power to compulsorily retire a Government Servant. The court has to see whether before the exercise of the power, the authority has taken into consideration the overall record even including some of the adverse remarks, though for technical reasons might be expunged on appeal or revision. What needed to be looked into is the bona fide decision taken in the public interest to augment efficiency in the public service. In the absence of any mala fide exercise of power or arbitrary exercise of power, a possible different conclusion would not be a ground for interference by the Court/Tribunal in exercise of its judicial review.”

41. It is also emphasized by Hon'ble the Supreme Court in the case of Bihari Lal (supra) that even general reputation of officer built around him might constitute sufficient material for exercise of powers under Rule 56(c) of the Uttar Pradesh Fundamental Rules as his further continuance would imperil the efficiency of the public service and would breed indiscipline among other public servants. On the basis of facts as mentioned hereinabove in the preceding paragraph, it has been deposed on behalf of the High Court that there were sufficient materials for the exercise of powers of compulsory retirement under Rule 56(c) of the Uttar Pradesh Fundamental Rules.

42. As regards withdrawal of promotion, vide Government Notification No. 2260.II-4-2000-32(1)/2005 dated 13.04.2005 read with Court's Notification No. 793.DR/(S)/2005 dated 17.05.2005, the petitioner was promoted to the post of Additional District & Sessions Judge under Rule 22(1) of the Uttar Pradesh Higher Judicial Service Rules, 1975. However, the same was withdrawn vide Court's Notification No. 952.DR(S)/2005 dated 23.05.2005, in pursuance of Government O.M No. 2695.II-4-05-22(6)/2005 dated 17.05.2005

43. According to respondents as mentioned hereinabove vide Rule 56(c) of the Uttar Pradesh Fundamental Rules, for a bona fide exercise of powers thereunder, it is just immaterial whether the government servant concerned has been recommended for promotion or has been promoted to the next higher post. The Notification of appointment to the post of Additional District and Sessions Judge was withdrawn subsequently in pursuance of the order of compulsory retirement issued by the appointing authority vide O.M dated 17.05.2005 The Court was well within its jurisdiction to recall the notification issued by the Court itself. The order compulsorily retiring the petitioner from service was based on material on record and by no stretch of imagination it can be branded as arbitrary. As a high level Screening Committee of five Judges had examined and assessed the entire service record and then formed the opinion, objectively, and as it has been held in the judgments of Hon'ble the Supreme Court, the Courts/Tribunals cannot interfere with such assessment of record in exercise of power of judicial review (vide (2003) 4 SCC 59 : AIR 2003 SC 1362, Jugal Chandra Saikia v. State of Assam, 1994 Supp (3) SCC 424 : AIR 1995 SC 111, S. Ramachandram Raju v. State of Orissa and (1998) 7 SCC 310 : AIR 1998 S.C 3058, M.S Bindra v. Union of India).

44. The provision as to compulsory retirement contained in Rule 56 of Fundamental Rules does not stand overridden by the promotion of the petitioner: Granting promotion does not mean that the Vigour and sting of the adverse entry is lost. In terms of Rule 56, the appointing authority may take into consideration any material relating to the Government servant and specifically makes it clear that nothing in the rule shall be construed to exclude the consideration of any entry relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis. Thus, the mere fact that the petitioner was promoted to the Higher Judicial Service does not by itself lead to the conclusion that he could not have been compulsorily retired. Moreover, in the judgment of Hon'ble the Apex Court in the case of Lalsa Ram, ((2001) 3 SCC 389 : AIR 2001 SC 1137 : 2001 All LJ 692) (supra), it has been settled that the power of judicial review in the matter of compulsory retirement is to be exercised with an extreme caution and Courts are not expected to sit in appeal over the recommendation of any Screening Committee. In the matter of compulsory retirement of judicial officers what is of paramount importance is the maintenance of discipline. The conducts which even slightly cause a doubt on the honesty, integrity or character and which shakes the confidence of Public in the judicial officers is to be viewed seriously and in the absence of any mala fide exercise of power or arbitrary exercise of power, a possible different conclusion would not be a ground for interference by the Courts in exercise of its judicial review. [Bihari Lal, (1994 Supp (3) SCC 593 : AIR 1995 SC 1161) (supra)].

45. The adverse remarks recorded in the character roll of the petitioner were normally communicated to him. However, if any particular confidential remarks having adverse remarks remained uncommunicated, the same would not make any difference and shall not affect the legality of the order of compulsory retirement. It has been made clear in the judgment of Hon'ble the Supreme Court in the case of Baikuntha Nath Das, ((1992) 2 SCC 299 : AIR 1992 SC 1020) (supra) that an order of compulsory retirement is not liable to be quashed by a Court, merely on the showing that while passing it, un-communicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.

46. The petitioner was found to be impertinent in his conduct by the then Administrative Judge for the inspecting year 1990–91; he was in the habit of crossing the bounds of his jurisdiction in bail matters; and the order of compulsorily retiring the petitioner in exercise of powers under Fundamental Rule 56(c) is not stigmatic nor punitive. Moreover, the conducts which even slightly cause a doubt on the honesty, integrity or character and which shakes the confidence of public in the judicial officers is to be eschewed and viewed seriously.

47. Moreover, it does not imply any stigma or any suggestion of misbehaviour. The incidence of compulsory retirement under the U.P Fundamental Rules does not amount to infringement of the U.P Judicial Officers (Retirement on Superannuation) Rules, 1992. Hon'ble the Supreme Court has clarified the position in Nawal Singh's case ((2003) 8 SCC 117 : AIR 2003 SC 4303 : 2003 All LJ 2491) as below:

“It is apparent that the 1992 Rules, regulating the retirement on superannuation of the Judicial Officers deal only with the extension of retirement age from 58 to 60 and by giving overriding effect Rule 56(a) of the Fundamental Rules is substituted for Judicial Officers of the State of U.P From this, by no stretch of imagination, it can be said that Rule 56(b) to (e) and the Explanations (1), (2) are, in any way, altered, amended or substituted.”

48. Besides, the petitioner while calculating the actual working days, had excluded 22 actual working days during which the advocates had remained on strike so as to show the minimum required quantum of work, and thus, found to have misconducted by furnishing wrong statement of work. The remarks of Administrative Judges as referred to hereinabove are only based on facts and self-assessment of the petitioner. His orders were found to have been passed in a mechanical manner without care to see that the order to be passed by him is most likely to affect the dignity, reputation, personal liberty and propriety of the person against whom he issued the process as noticed by the Hon'ble Court in Criminal Misc. Application No. 19858 of 1993 (Under Section 482 Cr. P.C).

49. In a short-counter affidavit filed on behalf of the State-opposite party No. 1, it has been stated that the petitioner was retired on 3 months' salary vide the order dated 17.05.2005, issued by the State. The order was communicated through Courts' D.O letter No. C-278.CF(B)/2005 dated 02.05.2005 In the rejoinder affidavit filed on behalf of the petitioner, he has reiterated the submissions made in the writ petition that the order of compulsory retirement was not passed on a bona fide belief and in public interest. Case of petitioner was not considered on merits and the appointing authority did not issue any notice to the petitioner before undertaking the exercise of compulsory retirement. The petitioner was retired solely on the basis of adverse remarks awarded to him some 20 years back. The order of compulsory retirement is punitive in nature and suffers from mala fide, nor does it promote the object of public interest. The petitioner enjoyed a good reputation and was never recorded a burden on the department. Thus, he has not outlived the utility for the department. The report of Screening Committee was kept confidential and was not supplied to the petitioner which is contrary to Rules of natural justice and fair play. The petitioner granted promotion on substantive basis as an Additional District and Sessions Judge before he was compulsorily retired. There was a conflict of opinion between two Committees namely, the one which recommended the case of petitioner for promotion and the other which scrutinized the service records/career profile of petitioner for compulsory retirement. There are some entries which were differently communicated to the petitioner than what have been shown in the record. Even on judicial side though the petitioner suffered a stricture but there was no charge of granting bails in the excess exercise of powers. It is also mentioned in the rejoinder affidavit that for the years 1993–94 and 1994–95, adverse remarks were never communicated.

50. It was also urged on behalf of the petitioner that the Public Service Commission, U.P was not consulted before the order of compulsory retirement was passed. The petitioner has referred to the judgments of Hon'ble the Supreme Court in support of a contention that the powers vested in High Courts are not meant for cracking a whip or for being exercised with vindictiveness. The observation of Hon'ble the Supreme Court in one of its judgment namely, R.C Tamrakar v. Nidhi Lekka, (2001) 8 SCC 431 : (AIR 2001 SC 3806) as “a judge who has not committed any error is yet to be born” has also been highlighted in support of the submissions. Lastly, it is mentioned in the rejoinder affidavit that after compulsory retirement, the petitioner applied for employment in response to several advertisements but has not received any communication. He has a duty to support his family and daughters of marriageable age, which he would fail to discharge on account of the order of compulsory retirement.

51. On a careful consideration of the rival submissions as noticed hereinabove in detail, the points that would emerge for consideration can broadly be summarised like; (i) that before passing the order of compulsory retirement, the petitioner was promoted on regular and substantive basis as an Additional District Judge; (ii) that the adverse remarks recorded against the petitioner would loose the stings in view of the order of promotion; (iii) that the petitioner was not given any opportunity to show cause in terms of Rule 56 of the U.P Fundamental Rules before the order of compulsory retirement was passed and even the State of U.P (Opposite Party No. 1) also did not apply its mind independently in passing the order and issuing notification for compulsory retirement; (iv) that the shortage of disposal attributed to petitioner was all because of his wrong postings and striking of work by the lawyers; (v) that the petitioner's integrity was never doubted and it was certified throughout; (vi) that the Screening Committee and the Full Court of High Court have not passed the order of compulsory retirement in a bona fide exercise of powers and rather the recommendation made by these bodies is actuated with the elements of mala fide; and (vii) that petitioner has a responsibility to financially support his family and three daughters of marriageable age.

52. Vide the Government notification No. 1616.II-4-200-32(I)/99 dated 20.05.2000, the petitioner was recruited by promotion for appointment to the post of Additional District and Sessions Judge as a stopgap arrangement under Rule 22(3) of the Uttar Pradesh Higher Judicial Service Rules, 1975. Subsequently, vide the Government notification No. 2260.II-4-2000-32(I)/2005 dated 13.04.2005, he was recruited by promotion on a regular and substantive basis to the post of Additional District and Sessions Judge under Rule 22(1) of the Uttar Pradesh Higher Judicial Service Rules, 1975. However, in view of Several adverse remarks earned by the petitioner during his service career for different years, and also in view of a careful scrutiny of the entire service records and career profile, he was found to be unbecoming of a Judge, and thus, compulsorily retired. As mentioned hereinabove in the foregoing paragraphs, Hon'ble the Supreme Court in its judgment in Nawal Singh's Case ((2003) 8 SCC 117 : AIR 2003 SC 4303 : 2003 All LJ 2491) has articulated that there is no embargo on the competent authority to exercise its power of compulsory retirement under Rule 56 of the U.P Fundamental Rules. Moreover, it has also been observed that it would be open to the competent authority (the High Court in this case) to follow the procedure for exercising powers under Rule 56(c) and the procedure prescribed in explanation 2-A requires that such orders should be passed in the public interest and that the appointing authority may take into consideration any material on record relating to such officer. Hon'ble the Supreme Court has set out the premises for passing the order of compulsory retirement and the nature and effect of such order in the judgment in the case of Baikunth Nath Das ((1992) 2 SCC 299 : AIR 1992 SC 1020) (supra) and has clarified that such an order retiring a Government servant would not carry any stigma. Besides, in the case of Bihari Lal (1994 Supp (3) SCC 593 : AIR 1995 SC 1169) (supra), Hon'ble the Apex Court has held that in an appropriate case, there may not be any tangible material but the reputation of officer could be such that his further continuance would imperil the efficiency of the Public Service and would breed indiscipline among other public servants. Therefore, the competent authority could legitimately exercise its power to compulsorily retire such a Government servant in terms of Rule 56 of the U.P Fundamental Rules. In the cases of compulsory retirement, the Court has only to see whether before the exercise of powers the authority has taken into consideration the overall records including such adverse remarks, which though for technical reasons might be expunged on appeal or revision. Thus, what is relevant is a bona fide decision taken in the public interest to augment the efficiency in public service. In the absence of any mala fide and arbitrary exercise of powers a possible different conclusion would not be a ground for interference with the orders of compulsory retirement by the Court/Tribunal in exercise of its judicial review.

53. In the instant case, as detailed hereinabove in foregoing paragraphs, the petitioner was repeatedly given adverse remarks, and also his percentage of disposal for some inspection years was found to be below the prescribed standard.

54. For the inspection year 1982–83, the Full Court recorded the following remarks:

“Disposal much below the standard being 44.5%. Judicial work reported to be satisfactory. Though attention on old cases is perceptible, disposal of execution cases has to be speeded up. Office control and administrative capacity reasonable. Relations with the Bar and brother officers cordial. Inspections irregular. Amenable to the advice of the District Judge who has remarked that the officer is poor in disposal of work, but has every chance of improvement keeping in view the quality of his work. Integrity certified.”

55. Similarly for the subsequent inspection year i.e 1983–84 final remarks were re corded as:

“Disposal inadequate being 91.3%. According to the District Judge his judicial work needs improvement. The District Judge further adds that the officer was not impartial in his dealings with the members of the Bar. During my inspection in March, 1984 some fairly senior members of the Bar complained to me that the officer was arbitrary in passing orders particularly in cases remanded to him for reconsideration. It was further complained that the officer was rough and rude to them. Thereupon I had asked the officer to see that he does not give any cause for such complaints. The District Judge, however, informed me that the officer had not shown any indication of improvement. Inspections carried out by the officer were, however, regular and effective. On an overall assessment, the District Judge says that he is a fair officer and that if he were to acquire judicial approach he would prove to be a good officer. Integrity is certified.”

56. Thereafter for the inspection year 1990–91 also, the disposal of petitioner was found to be below the prescribed standard and the remarks were recorded as:

“Disposal below standard being 90.4%. The District Judge reported that he took charge on 07.06.1990 and the Court was newly created and the files were received by transfer. District Judge further reported that number of cases were not available for disposing. The officer should improve his disposal. He made only one inspection on 15.12.1990 Relation with the Bar and brother officer satisfactory. He was censured for the act and conduct of impertinence, which he showed in the meeting of the Hon'ble Administrative Judge with the Judicial Officers of the District during inspection tour. The District Judge has rated him as a good officer but in my opinion he is fair officer. Integrity was certified by the District Judge.”

57. In the remarks recorded by the High Court for the inspection year 2002–03, the petitioner was found to have misconducted in furnishing a wrong statement of the work done by him. The remarks so recorded are as:

“Disposal: 126.04%, as shown by the officer, is incorrect and misleading. The calculation of actual working days has wrongly been made by the officer. In the statement (Annexure-2 to the self assessment) furnished by the officer, while calculating the actual working days, he has excluded 22 days, during which period the lawyers were on strike. The period during which the lawyers were on strike could not have been excluded from the actual working days, as per the directions of the High Court, vide Circular dated 20th August, 1998. The aforesaid Circular, inter alia, says, “The Hon'ble Court has directed that the Courts should continuously function and no credit in the quantum of work fixed by the Hon'ble Court shall be given to the presiding officers on account of such strike”. Similarly, he has excluded 39 days as Misc. days, during which period Misc. work and Misc. cases were done. He has again taken credit of 19.54 days as ‘Criminal Misc. days’ and excluded the same from the actual working days. After excluding 229.04 days, he calculated the actual working days during the period under review (1.4.2002-31.3.2003) as 135.96 days, out of which he has given 171.50 days work. These working figures has been deliberately given by the officer so as to show at least the minimum required quantum of work. The officer has misconducted himself by furnishing wrong statement of work done.

The overall performance of the officer is not satisfactory.

A poor officer.”

58. And lastly, the inspection remarks showing the lower percentage of disposal as recorded by the Hon'ble Administrative Judge for the period 01.04.2003 to 18.07.2003 read as:

“Disposal: 45% below the prescribed standard. The officer was posted in the judgeship during the period 1.04.03 to 18.7.03 and thereafter he was transferred to Lucknow Judgeship. However, during the aforesaid period he gave 22.50 days work out of 50 actual working days, which is inadequate. The officer has furnished no explanation for low disposal during the first quarter. The officer has made efforts to dispose of old cases. His relations with members of the Bar and brother officer were cordial. The overall performance of the officer is good. A good officer.”

59. Apart from the short fall in disposal of cases, during the inspection of the Administrative Judge, for the year 1990–91, the petitioner was found to Have shown the conduct of impertinence and thus some adverse re marks were recorded against him as under:

“Sri Lal Bahadur, A.C.J.M, Farrukhabad is hereby censured for the act and conduct of impertinence which he showed in the meeting of the Hon'ble Administrative Judge with the Judicial Officers of the district during inspection tour of the year 1990–91.”

60. The High Court in its counter affidavit has asserted that in a bona fide exercise of powers under Rule 56(c) of the Uttar Pradesh Fundamental Rules, the petitioner has been compulsorily retired by taking a conscious decision on an overall assessment of the entire service records irrespective of the fact that he was recommended for promotion or promoted to the higher post and that is why, the order of promotion was withdrawn by a subsequent notification. The High Court was well within its powers to recall the notification issued by the Court. As the order of compulsory retirement has been passed on the basis of material on record, and on a careful perusal of records it does not suffer from any infirmity and moreover, we also do not find any specific material or allegation on record, said to be attributable to any member of the Screening Committee or the Full Court.

61. That apart, the petitioner was also found to be in the habit of crossing the bounds of his jurisdiction in some bail matters. One such case as noticed related to issuing non-bailable warrants of arrest in Criminal Complaint Case No. 3435 of 1993 (Crl. Misc. Application No. 19858 of 1993). An Hon'ble learned Single Judge on a judicial scrutiny of the matter sent a report dated 15.03.1995 as:

“While disposing of Criminal Misc. Application No. 3435 of 1993, S. Subramanium v. State under Section 482, Cr. PC, I have found that the officer working as A.C.J.M, Kasiya in the distinct of Deoria on 06.11.1993 whose name may be ascertained from your own record, has not acted judiciously in accordance with law before passing the order of summoning and before issuing the non-bailable warrants against the Chairman and other functionaries of the Central Bank of India in the aforesaid complaint case. It appears that he does not know the basic principles of law, does not read the complaint and statements of the, witness and other documents. He does not apply his mind either to the record or to the provisions of law and passed order in a mechanical manner without care to see that the order to be passed by him is most likely to effect the dignity, reputation, personal liberty and propriety of the person against whom the process is being issued. These remarks be placed in the character roll of the officer concerned after perusal by the Hon'ble Inspecting Judge of the Session Division, Deoria.”

62. It is in this background only that the recommendation of the High Court for compulsory retirement of the petitioner was made which appears to be based on the evidence as available on record for the screening/scrutiny by the committee of High Court as required to be done in terms of the judgments of Hon'ble the Apex Court. Besides, in the case of State of U.P v. Lalsa Ram, [(2001) 3 SCC 389] : ((2001) 3 SCC 389 : AIR 2001 SC 1137 : 2001 All LJ 692) the Supreme Court has discussed (in Paras 11, 12, 13, 14 & 15) in great detail the ambit and scope of Rule 56 of the U.P Fundamental Rules as below:

“11. The Uttar Pradesh Fundamental Rules governing the service conditions of the respondent herein, in particular, Rule 56(c) & Explanations (2)(a), (b) and (c) specifically provide that nothing in the rules should be construed to exclude from consideration of any entry relating to any period before a Government servant was allowed to cross any efficiency bar or he was promoted to any post in an officiating or a substantive capacity or on an ad hoc basis. The important words used are: nothing herein contained shall be construed to exclude from consideration: the exclusion thus is prohibited in terms of the rule. The authority concerned, by reason where-for, has thus a liberty to consider even entries relating to the period before the Government servant was allowed to cross any efficiency bar or before he was promoted. It is true that one of the guiding principles as enunciated above in Baikuntha Naths' case ((1992) 2 SCC 299 : AIR 1992 SC 1020) (supra) with regard to performance during the later years ought to be attached more importance but that does not exclude the consideration of the entire record of service.

12. The respondent herein very strongly adverted to the promotion offered and contended that even assuming there were adverse report and remarks by reason of the promotion being made available, the adverse remarks lost their sting and as such the same do not and cannot be said to be a factor which must have weighed with the authority concerned directing compulsory retirement. Admittedly and the law being well settled on this score that in the event of there being a promotion by the Departmental Promotion Committee upon assessment of the service career and annual confidential reports the adverse entires lose its sting-in the event however, the promotion is offered only on the ground of seniority without any assessment of the entire career situation, question of adverse entries losing its sting does not and cannot arise. In the contextual facts if it was promotion by way of a selection and not by seniority, no exception could be taken therefor but the facts in the present context depict otherwise since the respondent herein was promoted by seniority only. The fourth principle as enunciated by this Court in Baikuntha Nath's case thus cannot be of any assistance to the respondent herein. A similar situation arose in the case of I.K Mishra v. Union of India, (1997) 6 SCC 228 : (AIR 1997 SC 3740) wherein this Court upon analysis of the factual aspect has the following to state:

“No doubt the appellant was sent by the respondents to appear in S.A.S examination in the year 1972–73 after having been found that the appellant complied with the conditions for appearing in the said examination and further the appellant passed the S.A.S Part II Examination but merely the facts that the appellant was sent to appear in the examination and was declared successful in the said examination are not the end of the matter. In fact passing of the S.A.S examination entitles an auditor to be considered for promotion to the higher post by the Departmental Promotion Committee. In the present case, after the appellant was declared successful in the S.A.S examination, the Departmental Promotion Committee after considering the service record of the appellant did not recommend his case for further promotion. Applying principle No. 4 as noted in the case of Baikuntha Nath Das the appellant having not been promoted to the higher post the adverse remarks in his character roll remained intact. Since the appellant was not promoted to the higher post by the Departmental Promotion Committee it is not correct to contend that the adverse materials in the annual confidential report of the appellant lost their sting and those materials could not form the basis of order compulsorily retiring the appellant from service.”

13. Rule 56(c) of the U.P Fundamental Rules read with Explanation (2) as noted herein before provides an authority to the Board with an absolute right to retire an employee on the date on which he attains the age of 50 years. The option for the Government servant to voluntarily retire however has been attributed to the employee concerned at any time after attaining the age of 45 years or after he has completed qualifying service of 20 years. The fundamental rules thus confer a right absolute to retire an employee on the happening of certain event namely the latter attains 50 years of age-the right being absolute and in the event the same is not contra to the conditions as embodied in Rule 56 of the Fundamental Rules, question of violation of any legal right of the respondent herein does not and cannot arise. The factum of the doc trine of natural justice being not available to an employee so retired compulsorily stands well settled and we need not dilate thereon.

14. Rule 56(c) seems to be in pari materia with Rule 3 of the Punjab Civil Services (Pre mature Retirement) Rules, 1975 and this Court while considering the same in the case of Gurdas Singh ((1998) 4 SCC 92 : AIR 1998 SC 1661) (supra) in para 6 observed: (SCC p. 95): (at p. 1663 of AIR).

“6. It will be thus seen that these Rules give absolute right to retire any Government employee on the date on which he completes 25 years of qualifying service or attains fifty years of age or as on any date thereafter to be specified in the notice by giving that employee prior notice of three months in writing. This right has to be exercised if in the opinion of the appropriate authority it is in public interest to retire any employee under the Rules.”

15. Incidentally, the five guiding principles as laid down in Baikuntha Nath's case by this Court stands accepted in another three-Judges Bench's judgment of this Court in Posts and Telegraphs Board v. C.S.N Murthy, (1992) 2 SCC 317 : (AIR 1992 SC 1368 : 1992 AIR SCW 1362) wherein this Court observed that whether the conduct of the employee is such as to justify a conclusion of compulsory retirement but the same is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement, the courts have no authority or jurisdiction to interfere with the exercise of power if arrived at bona fide on the basis of the material available on record: Usurpation of authority is not only unwarranted but contrary to all norms of service jurisprudence.”

63. In the matter of compulsory retirement of the judicial officers what is of paramount important is the maintenance of judicial discipline. The conduct which may even cause a slight doubt on the honesty, integrity or character and which shakes the confidence of public in the judicial officers is to be eschewed and viewed seriously. Ordinarily in the absence of elements of mala fide or arbitrariness in the exercise of power, a possible different conclusion would not be a ground for interference by the Courts.

64. Though the petitioner has attributed mala fide and bias to the respondents but unsuccessfully and without any material to support the allegation, and simply because one of the members of the Screening Committee had been the Registrar General would not vitiate the consideration of Screening Committee. Unless the allegations of mala fide, bias and/or enmity are made specific, the same are not required to be gone into, particularly in the case of a compulsory retirement. Moreover, the apprehension that one of the members of the Screening Committee had recorded certain adverse inspection remarks would have influenced the proceedings of Screening Committee also does not seem to be founded upon any material so as to say that it could vitiate the constitution of the Screening Committee and thus could form a ground to question the bona fide exercise of powers retiring the petitioner in public interest. In some paragraphs of the writ petition, the petitioner has even cast aspersion against the Court as a whole on the assumption that some Judges of the Screening Committee had influence over other Hon'ble members of the high level Screening Committee of the Hon'ble Judges who had made the recommendations for compulsory retirement and the Full Court, which unanimously passed the resolution in respect thereof. Such allegations as rightly averred in the counter-affidavit are scandalous and may amount to casting insult to the institution and challenge to the independence of the judicial system as a whole. Thus the petitioner has not exercised restraints even in the pleadings of the writ petition.

65. So far as the contention that the petitioner was required to be given a show-cause notice before passing the order of compulsory retirement is concerned, in the case of Lalsa Ram ((2001) 3 SCC 389 : AIR 2001 SC 1137 : 2001 All LJ 692) (supra), it has been held that the applicability of the rules of natural justice does not arise were the conditions for compulsory retirement provided in the rules are complied with. The impugned order of compulsory retirement was passed by the respondents only on the basis of correct scrutiny of his entire service records. May be that some adverse remarks were not communicated or inadvertently wrongly communicated as alleged by the petitioner, but the Screening Committee thoroughly examined each and every material on record in respect of the petitioner before sending the recommendations. Hence, there was no need for giving any show-cause notice once the conditions provided in Rule 56 of the U.P Fundamental Rules were satisfied and complied with.

66. The High Court was, thus, well within its right to review the case of petitioner in order to find out as to whether he had outlived the utility for the department and on scrutiny of material on record, correctly recommended his case for compulsory retirement. As regards the question of integrity, it is the minimum qualification required for holding the post of a Judge, and thus, it is not the one and only requirement for the survival of a judicial officer in the department. On the contrary in the wake of plethora of adverse materials on record, the petitioner could not have survived the exercise of screening and thus, it cannot be said that he had not become a ‘dead wood’ for the department.

67. Regarding a submission on behalf of the petitioner that the State through its executive organ did not examine the matter independently before passing the order of compulsory retirement, the State is bound to honour the recommendation of the High Court in terms of the Judgement of Supreme Court in the case of State of Bihar v. Bal Mukund Sah ((2000) 4 SCC 640 : AIR 2000 Supreme Court 1296).

68. In this five Judges Bench judgment, in the matter of subordinate judiciary the primacy of consultation with High Court and thus the primacy of Full Court's recommendation to the Governor in respect of subject matters covered under Articles 233, 234 & 235 of the Constitution of India have been discussed and reiterated.

69. In view of the fact that the order/notification of compulsory retirement passed under Rule 56 of the Fundamental Rules is not stigmatic in nature, that in the judgment in All India Judges' Association case, ((1993) 4 SCC 288 : AIR 1993 SC 2493), it has been clarified that the judges perform a divine function and thus there is no scope for the survival of inefficient, corrupt or such judicial officers who have become ‘dead wood’ and further that the impugned order/notification was passed only in a bona fide exercise of powers under the U.P Fundamental Rules, we are not inclined to interfere therewith in the exercise of powers under the writ jurisdiction under Articles 226 and 227 of the Constitution.

70. In view of all the aforesaid and in the premises set out hereinabove, we dismiss the writ petition, being devoid of merits, without any order as to costs.

71. Petition dismissed.