Pyare Mohan Lal Vs.
State of Jharkhand & Ors.  INSC 733 (10 September 2010)
IN THE SUPREME COURT
OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 382 OF 2003
Pyare Mohan Lal ..... Petitioner Versus State of Jharkhand & Ors. .....
Dr. B.S. CHAUHAN, J.
writ petition has been filed against the order dated 20.5.2003, passed by the
State of Jharkhand - Respondent No. 2, giving compulsory retirement to the
petitioner, a Judicial Officer of the State of Jharkhand, on the recommendation
of the High Court of Jharkhand - the respondent No. 3 on administrative side.
and circumstances giving rise to this case are that the petitioner was selected
in the Bihar Civil Services (Judicial Branch) in 1982 and was appointed to the
post of Munsif by the State and was confirmed in the grade of Munsif vide order
dated 11th March, 1987.
He was further
promoted to the junior selection grade post in the cadre of Munsif of the Bihar
Judicial Service vide order dated 23rd September, 1994. The Patna High Court
issued Notification dated 10th March, 2001 promoting the petitioner to the post
of Subordinate Judge.
to the bifurcation of the State of Bihar and formation of the State of
Jharkhand, the services of the petitioner were allocated to the Jharkhand State
by the order of the Ministry of Personnel, Public Grievances and Pension
(Department of Personnel and Training), New Delhi dated 28th March, 2001. The
petitioner was appointed as a Sub-Judge, Ranchi, vide Notification dated 21st
April, 2001, issued by the High Court of Jharkhand and, subsequently, the
petitioner was placed at the disposal of the State of Jharkhand as Under
Secretary-cum-Deputy Legal Remembrance and Law Officer in the Law Department vide
order dated 1st August, 2001.
High Court of Jharkhand recommended the name of the petitioner along with
others for promotion to the post of Additional District Judge on Ad hoc basis
vide letter dated 21st October, 2001.
The petitioner was appointed
as Additional District and Sessions Judge, (Fast Track), on ad-hoc basis and
was posted at Ranchi vide order dated 14th December, 2001. The High Court of
Jharkhand on administrative side vide order dated 12th May, 2003 recommended
compulsory retirement of six judicial officers including the petitioner, and in
pursuance thereof, the Respondent No. 2 issued a consequential order of
compulsory retirement of the petitioner dated 20th May, 2003, in public
interest, invoking the provisions of Rule 74(b)(ii) of the Jharkhand Civil
Services Code (hereinafter called the Code) along with five other judicial
officers. Hence, this writ petition.
Sunil Kumar, learned Senior Advocate appearing for the petitioner, has
submitted that the petitioner had unblemished service record and there was no
adverse entry against him and he had even been promoted to the post of
Additional District and Sessions Judge, (Fast Track), thus adverse entries, if
any, stood washed off as the same had been prior to the date of his promotion.
The order of compulsory retirement passed by Respondent No. 2 is arbitrary,
unreasonable and unwarranted. The adverse entries on the basis of which the
petitioner had been given compulsory retirement had not been communicated to
the petitioner. The representation made by the petitioner against the said
adverse entries has not been disposed of till date. The order of compulsory
retirement as far as the petitioner is concerned cannot be held to be in public
interest; there was no material whatsoever to support the conclusion reached by
the High Court of Jharkhand. The recommendation made by the High Court is
unreasonable and arbitrary. Order impugned casts stigma. Rule 74(b)(ii) of the
Code empowers competent authorities only to get rid of and to do away with the
services of employees, who have lost their utility, became useless and whose
further continuance in service is not in public interest. There was no occasion
for the respondents to pass an order of compulsory retirement of the petitioner
in absence of any material to justify such an order. Thus, the order impugned
is liable to be held to be illegal and invalid. Petition deserves to be
the other hand, Shri Ashok Mathur and Shri Anil Kumar Jha, learned counsel
appearing for the respondents, have vehemently opposed the petition contending
that there had been large number of adverse entries against the petitioner and
the said entries were not expunged; his disposal was very low; he did not enjoy
a good reputation as several entries relating to his integrity being doubtful had
been recorded. Thus, he could not claim himself to be fit to be retained in
judicial service. The petition lacks merit and is liable to be dismissed.
have considered the rival submissions made by learned counsel for the parties
and perused the record.
RETIREMENT Officer, Baripada & Anr., AIR 1992 SC 1020, this Court has laid
down certain criteria for the Courts, on which it can interfere with an order
of compulsory retirement and they include mala fides, if the order is based on
no evidence, or if the order is arbitrary in the sense that no reasonable
person would form the requisite opinion on the given material, i.e. if it is
found to be a perverse order. The Court held as under:- "(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 the Government.
(iii) Principles of
natural justice have no place in the context of an order of compulsory
retirement. This does not mean that judicial scrutiny is excluded altogether.
While the High Court or the Court would not examine the matter as an appellate
Court, they may interfere if they are satisfied that the order is passed (a)
mala fide or (b) that it is based on no evidence or (c) that it is arbitrary-
in the sense that no reasonable person would form the requisite opinion on the
given material : in short, if it is found to be a perverse order.
(iv) The Government
(or the Review Committee, as the case may be) shall have to consider the entire
record of service before taking a decision in the matter- of course attaching
more importance to record of and performance during the later years. The record
to be so considered would naturally include the entries in the confidential
records/character rolls, both favourable and adverse. If a Government servant
is promoted to a higher post notwithstanding the adverse remarks, such remarks
lose their sting, more so, if the promotion is based upon merit (selection) and
not upon seniority.
(v) An order of
compulsory retirement is not liable to be quashed by a Court merely on the
showing that while passing it uncommunicated adverse remarks were also taken
into consideration. That circumstance by itself cannot be a basis for
interference." (Emphasis added).
view has been reiterated by this Court in Posts and 6 Ors., AIR 1999 SC 1661.
This Court observed that there was a very limited scope of judicial review in a
case of compulsory retirement and it was permissible only on the grounds of
non-application of mind; mala fides; or want of material particulars. Power to
retire compulsorily a Government servant in terms of Service Rules is absolute,
provided the authority concerned forms a bona fide opinion that compulsory
retirement is in public interest.
(1999) 1 SCC 529,
this Court held that while considering the case of an employee for compulsory
retirement, public interest is of paramount importance. The dishonest, corrupt
and dead-wood deserve to be dispensed with. How efficient and honest an
employee is, is to be assessed on the basis of the material on record, which
may also be ascertained from confidential reports. However, there must be some
tangible material against the employee warranting his compulsory retirement.
7 this Court held
that if the general reputation of an employee is not good, though there may not
be any tangible material against him, he may be given compulsory retirement in
public interest and judicial review of such order is permissible only on
limited grounds. The Court further held that:
needed to be looked into, is the bona fide decision taken in public interest to
augment efficiency in the public service."
1345, this Court
while dealing with the issue observed as under:
integrity of a government employee is a serious matter. In the present case,
what we find is that the integrity of the respondent was withheld by an order
dated 13-6-1997 and the said entry in the character roll of the respondent was
well within ten years of passing of the order of compulsory retirement. During
pendency of the writ petition in the High Court, the U.P. Services Tribunal on
a claim petition filed by the respondent, shifted the entry from 1997-98 to
1983-84. Shifting of the said entry to a different period or entry going beyond
ten years of passing of the order of compulsory retirement does not mean that
vigour and sting of the adverse entry is lost. Vigour or sting of an adverse
entry is not wiped out, merely it is relatable to 11th or 12th year of passing
of the order of compulsory 8 retirement. The aforesaid adverse entry which
could have been taken into account while considering the case of the respondent
for his compulsory retirement from service, was duly considered by the State
Government and the said single adverse entry in itself was sufficient to
compulsorily retire the respondent from service.
We are, therefore, of
the view that entire service record or confidential report with emphasis on the
later entries in the character roll can be taken into account by the Government
while considering a case for compulsory retirement of a government servant.
(Emphasis added) 2003 SC 1362, this Court held that where the screening
committee is consisting of responsible officers of the State and they have
examined/assessed the entire service record and formed the opinion objectively
as to whether any employee is fit to be retained in service or not, in the
absence of any allegation of mala fides, there is no scope of a judicial review
against such an order.
a similar view has
been reiterated. The Court observed as under:
"At the outset,
it is to be reiterated that the judicial service is not a service in the sense
of an employment. Judges are discharging their functions while exercising the
sovereign judicial 9 power of the State. Their honesty and integrity is
expected to be beyond doubt. It should be reflected in their overall
reputation. Further, the nature of judicial service is such that it cannot
afford to suffer continuance in service of persons of doubtful integrity or who
have lost their utility. If such evaluation is done by the Committee of the
High Court Judges and is affirmed in the writ petition, except in very
exceptional circumstances, this Court would not interfere with the same,
particularly because the order of compulsory retirement is based on the
subjective satisfaction of the authority.
......Further, it is
impossible to prove by positive evidence the basis for doubting the integrity
of the judicial officer. In the present-day system, reliance is required to be
placed on the opinion of the higher officer who had the opportunity to watch
the performance of the officer concerned from close quarters and formation of
his opinion with regard to the overall reputation enjoyed by the officer concerned
would be the basis.
judiciary is the foundation of the judicial system. We hope that the High
Courts would take appropriate steps regularly for weeding out the dead wood or
the persons polluting the justice delivery system".
AIR 2003 SC 2889,
this Court after examining the entire evidence on record came to the conclusion
that the compulsory retirement awarded to the appellant therein, Chandra Singh,
a Judicial Officer, was not in consonance with law. However, considering the
report of the Committee and taking note of the adverse remarks made against
him, the Court refused to grant him any relief. The relevant part of the
judgment reads as under:
"It will bear
repetition to state that in terms of Rule 53 of the Pension Rules, an order for
compulsory retirement can be passed only in the event the same is in public
interest and/or three months' notice or three months' pay in lieu thereof had
been given. Neither of the aforementioned conditions had been complied with....
We have, therefore,
no option but to hold that the actions on the part of the High Court or the
State in compulsorily retiring the appellants herein were illegal.
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 deadwood. This constitutional power of the High Court cannot be
circumscribed by any rule or order. We can usefully refer to some of the
leading cases on Article 235:
1. State of Assam v.
Ranga Mohd., AIR 1967 SC 903 (five Judges)
2. Samsher Singh v.
State of Punjab, AIR 1974 SC 2192 (seven Judges) 3. High Court of Judicature at
Patil, AIR 1997 SC 2631.
xxx xxx xxx In the
instant case, we are dealing with the higher judicial officers. We have already
noticed the observations made by the Committee of three Judges. The nature of
judicial service is such that 11 it cannot afford to suffer continuance in
service of persons of doubtful integrity or who have lost their utility."
13 SCC 581, this
Court examined the case of the compulsory retirement of a Judicial Officer and
came to the conclusion that the Review Committee had made an overall assessment
considering the entire service record of the said officer and came to the
conclusion that continuance of the said officer in service would be a liability
to the Department and adverse to public interest as his ACRs. revealed that he
was poor in writing the judgments and was advised to improve the same. His
judicial work was found unsatisfactory and he had been advised to improve the
same. His integrity was found doubtful in the year 1983. He had earlier been
superseded while being considered for promotion in 1983 and he had been given
an adverse entry in 1993 that he failed to inspire confidence in subordinate
staff and lawyers and had a low rate of disposal. On the basis of the aforesaid
adverse entries, he was given compulsory retirement vide order dated 9.11.2000.
This Court refused to interfere with the said order in view of the fact that he
could not raise proper allegations of mala fides or establish that the order of
compulsory retirement was passed without application of mind. While deciding
the said case, the court placed reliance upon the judgment of this Court in
Vijay Kumar Jain (supra).
Jamindar & Ors., (2009) 15 SCC 221, this Court held that judicial review of
an order of compulsory retirement is permissible if the order is perverse or
arbitrary, as also where there is non-compliance of statutory duty by statutory
authority but the court should not go into the factual findings. The factors
not germane for passing an order of compulsory retirement should not be taken
into consideration. The criteria and rules adopted by the employer must be
adhered to, to determine whether the employee had become liable for compulsory
retirement. An authority discharging a public function must act fairly.
18. Thus, the law on
the point can be summarised to the effect that an order of compulsory
retirement is not a punishment and it does not imply stigma unless such order
is passed to impose a punishment for a proved misconduct, as prescribed in the
Statutory Rules. (See The Authority must consider and examine the over-all
effect of the entries of the officer concerned and not an isolated entry, as it
may well be in some cases that in spite of satisfactory performance, the
authority may desire to compulsorily retire an employee in public interest, as
in the opinion of the said Authority, the post has to be manned by a more
efficient and dynamic person and if there is sufficient material on record to
show that the employee "rendered himself a liability to the
institution", there is no occasion for the Court to interfere in the
exercise of its limited power of judicial review.
WASHED OFF THEORY a
two-Judge Bench of this Court held that adverse entries regarding the
dishonesty and inefficiency of the government employee in his ACRs have to be
ignored if, subsequent to recording of the same, he had been allowed to cross
the efficiency bar, as it would mean that while permitting him to cross the
efficiency bar such entries had been considered and were not found of serious
nature for the purpose of crossing the efficiency bar.
20. Similarly, a two-Judge
Bench of this Court in Baidyanath taken a similar view on the issue observing
that adverse entries awarded to the employee in the remote past lost
significance in view of the fact that he had subsequently been promoted to the
higher post, for the reason that while considering the case for promotion he
had been found to possess eligibility and suitability and if such entry did not
reflect deficiency in his work and conduct for the purpose of promotion, it
would be difficult to comprehend how such an adverse entry could be pressed
into service for retiring him compulsorily.
When a government
servant is promoted to higher post on the basis of merit and selection, adverse
entries if any contained in his service record lose their significance and
remain on record as part of past history.
This view has been
adopted by this Court in Baikuntha Nath Das (supra).
21. However, a
three-Judge Bench of this Court in State of Orissa different view as it had
been held therein that such entries still remain part of the record for overall
consideration to retire a government servant compulsorily. The object always is
public interest. Therefore, such entries do not lose significance, even if the
employee has subsequently been promoted. The Court held as under:- "Merely
because a promotion has been given even after adverse entries were made, cannot
be a ground to note that compulsory retirement of the government servant could
not be ordered. The evidence does not become inadmissible or irrelevant as
opined by the Tribunal. What would be relevant is whether upon that state of
record as a reasonable prudent man would the Government or competent officer
reach that decision. We find that selfsame material after promotion may not be
taken into consideration only to deny him further promotion, if any. But that
material undoubtedly would be available to the Government to consider the
overall expediency or necessity to continue the government servant in service
after he attained the required length of service or qualified period of service
for pension." (Emphasis added)
22. This judgment has
been approved and followed by this court in emphasising that the "entire
record" of the government servant is to be examined.
23. In Vijay Kumar
Jain, (supra), this Court held that the vigour or sting of an entry does not
get wiped out, particularly, while considering the case of employee for giving
him compulsory retirement, as it requires the examination of the entire service
records, including character rolls and confidential reports. `Vigour or sting
of an adverse entry is not wiped out' merely it relates to the remote past.
There may be a single
adverse entry of integrity which may be sufficient to compulsorily retire the
2547, this Court
observed that it must be borne in mind that in cases where there is any
conflict between the views expressed by larger and smaller Bench of this Court,
the court cannot disregard or skirt the views expressed by the larger Bench.
this Court considered
the issue and observed as under:
practice over the years has been that a larger bench straightway considers the
correctness of and if necessary overrules the view of a smaller bench. This
practice has been held to be a crystallised rule of law in a recent decision by
a Special Bench of seven learned Judges. In A. R. Antulay v. R. S. Nayak, AIR
1988 SC 1531, Sabyasachi Mukharji, J., speaking for the majority said (at p.
1548 of AIR) :
17 `The principle
that the size of the bench whether it is comprised of two or three or more
judges does not matter, was enunciated in Young v. Bristol Aeroplane Ltd.,
(1944-2 All ER 293) (supra) and followed by Justice Chinnappa Reddy in Javed
Ahmad Abdul Hamid Pawla v. State of Maharashtra, (AIR 1985 SC 231), where it
has been held that a Division Bench of two judges, has not been followed by our
xxxx xxxx xxxx xxxx
xxxx The law laid down by this Court is somewhat different. There is a
hierarchy within the Court itself here where larger benches overrule smaller
benches. See Mattulal v. Radhey Lal, AIR 1974 SC 1596, Union of India v. K. S.
Subramanian, AIR 1976 SC 2433 at 2437; and State of U.P. v.
Ram Chandra Trivedi,
AIR 1976 SC 2547 at p. 2555. This is the practice followed by this Court and
now it is a crystallised rule of law.' The answer to the question posed in
Javed Ahmad case thus stands concluded and it is now not open to anyone to
contend that a bench of two judges cannot be overruled by a bench of three
judges. We must regard this as a final seal to the controversy."
26. In view of the
above, the law can be summarised to state that in case there is a conflict
between two or more judgments of this court, the judgment of the larger Bench
is to be followed. More so, the washed off theory does not have universal
application. It may have relevance while considering the case of government
servant for further promotion but not in a case where the employee is being
assessed by the Reviewing Authority to determine whether he is fit to be
retained in service or requires to be given compulsory retirement, as the
Committee is to assess his suitability taking into consideration his
"entire service record".
27. The instant case
is to be examined in the light of the aforesaid settled legal propositions.
28. Some of the
entries in the ACRs' of the petitioner of the last years, which are relevant
for this purpose are being mentioned here as under:
Year Remarks 1996-97
(i) Knowledge - Average (ii) Promptness in disposal - Out turn Poor (iii) Net
Result - Average 1997-98 (i) Promptness in Disposal - Average (ii) Efficiency -
Average (iii) Net result - Average officer capable of improvement 1998-99 (i)
Promptness in disposal - Average (ii) Efficiency - Average (iii) Net result -
out-turn capable of improvement 1999-2000 (i) Promptness in disposal - Average
(ii) Efficiency - Average 19 (iii) Reputation - Not good Is he fit for
exercise of any enhanced power - No Beside these, adverse remarks made by the
inspecting Judge against the petitioner are given as under:
30.8.1997 (i) Knowledge - Average, extensive study required.
(ii) Promptness in
disposal - Not upto mark (iii) Reputation - Some whispers are there but nothing
concrete could be found.
2001-02 (i) Judgment
- Average i.e. B (ii) Efficiency - Average (B) (iii) Integrity - Seriously
29. It is evident
from the aforesaid service record of the petitioner that he remained an average
officer throughout his service career and could never improve. His out turn had
been poor; he had been given adverse entries regarding his integrity/reputation
as not good in the years 1999-2000 and remarks to that effect by the Inspecting
Judges in 1997 and 2001-2002. The petitioner had made a bald assertion that the
adverse entries have not yet been communicated to him. It has been repeatedly
submitted by him that representations made by him against the said adverse
entries had not been disposed of. Indisputably, excommunicated adverse entries
could be taken into account for the purpose of assessing an officer for
compulsory retirement. The petitioner has not disclosed on what dates the
representations against the adverse entries had been made. The petitioner had
not challenged the said adverse entries, rather he considered it appropriate to
challenge only the order of compulsory retirement which has been a
consequential effect of such adverse entries. The law requires the Authority to
consider the "entire service record" of the employee while assessing
whether he can be given compulsory retirement irrespective of the fact that the
adverse entries had not been communicated to him and the officer had been
promoted earlier in spite of those adverse entries. More so, a single adverse
entry regarding the integrity of an officer even in remote past is sufficient
to award compulsory retirement. The case of a Judicial Officer is required to
be examined, treating him to be differently from other wings of the society, as
he is serving the State in a different capacity. The case of a Judicial Officer
is considered by a Committee of Judges of the High Court duly constituted by
Hon'ble the Chief Justice and then the report of the Committee is placed before
the Full Court. A decision is taken by the Full Court after due deliberation on
the matter. Therefore, there is hardly any chance to make the allegations of
non- application of mind or mala fide.
30. Be that as it
may, the service record of the petitioner revealed that he had not been
promoted in the regular cadre of the District Judge as he was not found fit for
the same because of the adverse entries. Petitioner was promoted as Additional
District Judge on Ad hoc basis and posted in the Fast Track Court. It was
definitely not a promotion on merit (selection). The High Court had objectively
decided to recommend his compulsory retirement and the State Authorities acted
accordingly. No fault can be found with the decision making process or with the
31. We do not find
any force in the submissions made by Shri Sunil Kumar, learned senior counsel
appearing for the petitioner that the counter affidavit filed by the High Court
and the State reveal that certain reports called for from the District Judge
had been considered, though such reports were not even available, and
therefore, the affidavit to that extent is mis-leading. In fact, it is evident
from the record that at the time of making of the note by the Registry for the
Full court, it had been mentioned that report was still awaited.
However, by the time
the Full Court was held the report had been made available and was duly
considered. Shri Ashok Mathur and Shri Anil Kr. Jha, learned counsel appearing
for the respondents had placed before us the original record relating to the
services of the petitioner and the report submitted by the Judicial
Commissioner, Ranchi dated 5.4.2003, who after taking into consideration a
large number of facts recorded the following conclusion:
confidential enquiry I have found that his general reputation is not so good,
but still no one came to me with any specific case against his general
Thus, the aforesaid
submission made on behalf of the petitioner is preposterous.
32. Placing reliance
on the judgments of this Court in M.S. Bindra 1981 SC 70, it has been canvassed
on behalf of the petitioner that adverse entries had not been made in bona fide
manner and as per the requirement prescribed by circulars etc. Therefore, the
consequential order of compulsory retirement is illegal. There is no factual
foundation on the basis of which such an assertion can be examined, nor there
is a challenge in the writ petition to the said adverse entries.
quashing of order of compulsory retirement dated 20.5.2003 and not quashing of
the adverse entries. Relief not specifically sought cannot be granted by the
court. Therefore, there is no occasion for us to probe the issue further.
33. In view of the
above, we do not find any cogent reason to interfere with the impugned order.
The petition lacks merit and is accordingly dismissed. No costs.