J. D. Shrivastava Vs. State of M.P.
& Ors  Insc 18 (24 January 1984)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) REDDY, O. CHINNAPPA (J) MISRA, R.B. (J)
CITATION: 1984 AIR 630 1984 SCR (2) 466 1984
SCC (2) 8 1984 SCALE (1)125
CITATOR INFO :
R 1987 SC 948 (7) RF 1992 SC1020 (22)
Fundamental Rules Rule 56(3)(a) Compulsory
Retirement- Adverse entries in confidential reports relating to a remote
period-Reliance on-Whether valid.
The appellant was a State Judicial Service
officer in the grade of Additional District & Sessions Judge.
Consequent upon the decision of the State
Government to reorganise the Higher Judicial Service it was decided that a
number of posts of the cadre of Additional District & Sessions Judges be
abolished and the incumbents of those posts be absorbed as District &
Sessions Judges. The High Court at one of the High Court meetings held to
screen the officers in the cadre of Additional District & Sessions Judges,
decided to retire the appellant compulsorily on his at tanning the age of SS
years under Rule 56(3)(a) of the Fundamental Rules. It was also decided not to
recommend him for promotion to the cadre of District and Sessions Judges.
The appellant was served with an order of
compulsory retirement dated August 28, 1981.
The Division Bench of the High Court
dismissed the appellant's writ petition impugning his compulsory retirement.
In the appeal to this Court, it was contended
that the High Court had made the recommendation to retire the appellant
compulsorily without applying its mind and that the decision was based on
collateral considerations and was arbitrary. On behalf of the High Court it was
contended that the personal confidential records of the appellant were
considered by the Full Court Meeting and the decision to retire the appellant
under Fundamental Rule 56(3)(a) was taken after due consideration of the entire
Allowing the appeal:
HELD: 1. It would be an act bordering on
perversity to dig out old files to find out some material to make an order
against an officer. Dependence on entries about 20 years before the date on
which the decision of compulsory retirement was taken cannot placed for
retiring a person compulsorily, particularly when such person concerned has
been promoted subsequent to such entries. [474H; 475A] D.Ramaswami v. State of
Tamil Nadu, [19811 2 S.C.R. 75 referred to.
2. The power to retire a Government servant
compulsorily in public interest in terms of a service rule is absolute provided
the authority concerned forms 467 an opinion bona fide that it was necessary to
pass such an order in public interest. But if such decision was based on
collateral grounds or if the decision was arbitrary, it is liable to be
interfered with by Courts. [469 B-C] Union of India v. Col. J.N. Sinha Anr.,
 1 S.C.R. 791; Union of India v. M.E. Reddy & Anr.,  1 S.C.R.
736; Swami Saran Saksena v. State of U.P.,  1 S.C.R. 923; Baldev Raj
Chadha Y. Union of India & ors  1 S.C.R. 430; and Brij Bihari Lal
Agarwal v. High Court of Madhya Pradesh & Ors.  2 S.C.R. 297 referred
In the instant case the High Court relied on
some adverse remarks relating to 1959-60 or thereabout. It was true that in the
early part of the appellant's career the entries did not appear to be quite
satisfactory. Some were and some were not good and some were of a mixed kind.
But being reports relating to a remote period, they are not quite relevant or
the purpose of determining whether he should by retired compulsorily or not in
1981. The scrutiny should have been confined to the reports for about ten years
prior to the date on which action was proposed to be taken. All the reports
except for 1972-73 and 1973-74 were good and quite satisfactory. Even in the
reports of the said years there was nothing to doubt his integrity. He was
punctual in attending to his work. The reports for the years 1976-77 to 1980-81
speak in favour of the appellant and not against him. A perusal of the said
reports showed that there was nothing against him. In these circumstances it
was impossible to take the view that the appellant was liable to be
compulsorily retired. [470 E- H]
3. The resolution of the High Court
recommending to the Government that the appellant should be compulsorily
retired and the impugned order passed under Fundamental Rule 56(3)(a) are
quashed. The resolution of the High Court that the appellant was not fit for
promotion to the cadre of District and Sessions Judges is also quashed. [474 E]
CIVIL. APPELLATE JURISDICTION: Civil Appeal
No. 3429 of 1982 Appeal by Special leave from the Judgment and order dated the
29th July, 1982 of the Madhya Pradesh High Court in Misc. Petition No. 1169 of
G.L. Sanghi and Ashok Srivastava for the
D. Y.S.. Chitale, Mrs. A K. Verma, D.N. Misra,
Dittia and A K. Sanghi for the Respondents
The Judgment of the Court was delivered by VENKATRAMIAH J. The appellant is a
judicial officer of the State of Madhya Pradesh, who would have ordinarily
retired on January 31, 1984 on attaining 58 years of age, He was appointed 468
as a Munsiff-Magistrate in the erstwhile State of Bhopal in 1953. On
reorganisation of States on November 1, 1956, he became a member of the
Judicial Service of the State of Madhya Pradesh. He was promoted as an
Additional District Sessions Judge on January . 8, 1974 and was confirmed in
that post with effect from November 25, 1971. Consequent upon the decision of
the State Government to reorganise the Higher Judicial Service of the State of
Madhya Pradesh in accordance with the advice of the High Court of Madhya
Pradesh 101 posts Of the cadre of Additional District & Sessions Judges
came to be abolished and the incumbents of those posts were to be absorbed as
District & Sessions Judges as per Government Memorandum dated February 24,
In the . issue of the said Memorandum the
High Court of Madhya Pradesh decided to screen the officers in the cadre of
Additional District & Sessions Judges for the purpose of making
recommendation to the State Government about the promotion of selected officers
to the cadre of District & Sessions Judges. For this purpose, Full Court
Meetings of the Madhya Pradesh High Court were held on February 27 and 28, 1981
and March 1, 1981. The case of the appellant was also considered in that
connection It is stated that at those meetings, the High Court first resolved
to scrutinise the cases of all the judicial officers who were to attain the age
of 55 years in the year, 1981. In the course of such scrutiny the High Court
decided on February 27, 1981 to retire the appellant compulsorily on his
attaining the age of SS years under Rule 56(3) of the Fundamental Rules. On
March l, 1981 it decided not to recommend him for promotion to the cadre of
District & Sessions Judges. Accordingly, the State Government was addressed
by the High Court to retire the appellant compulsorily. The appellant
thereafter continued as an Additional District & Sessions Judge until he
was served with the order of compulsory retirement dated August 28, 1981.
Aggrieved by that order, the appellant filed a writ petition before the High
Court. The petition was dismissed by a Division Bench of the High Court on July
29, 1982. This appeal is preferred by special leave against the judgment of the
High Court, Clause (a) of the Fundamental Rule 56(3) as amended in 1976 which
governs the case of the appellant reads thus:
"F.R.56(3)(a) A Government servant may,
in the public interest, be retired at any time after he attains the age of
fifty five years without assigning any reason by giving him a notice in writing
469 It is contended that the order of compulsory retirement is unsustainable on
various grounds and the principal ground urged is that the High Court had made
the recommendation to retire the, appellant compulsorily without applying its mind
to the case as required by law that it was a decision based on collateral
considerations and that it was arbitrary.
It is now firmly settled that the power to
retire a Government servant compulsorily in public interest in terms of a
service rule is absolute provided the authority concerned forms an opinion bona
fide 'that it is necessary to pass such an order in public interest. It is
equally well settled that if such decision is based on collateral grounds or if
the decision, is arbitrary, it is liable to be interfered with by courts. (See
Union of India v. Col. J.N. Sinha & Anr). We have also gone through the
following decisions, namely, Union of India v. M.E. Reddy & Anr., Swami
Saran Saksena v. State of U.P., Baldev Raj Chadha v. Union of India of, Brij
Bihari Lal Agawral v. High Court of Madhya Pradesh & Ors., and D. Ramaswami
v. State of Tamil Nadu which have a bearing on the question-before us. We shall
now proceed to deal with the facts, of the case in the light of the principles
enunciated in the above decisions.
In Para 10 of the counter affidavit of Shri
A.K. Pandey, Additional Registrar of the High Court of Madhya Pradesh filed
before this Court, it is stated as follows .
"It is not disputed that Full Court
Meeting was held on 27th/28th February, as well as 1st March, 1981
to consider the cases of Additional District & Sessions Judges for
promotion in the Higher Judicial Service. It is also not disputed that the
petitioner stood at serial No. 10 in the seniority list of Additional District
Sessions Judges, It is also not disputed that he was confirmed as Additional
District & Sessions judge in August, 1976. The personal confidential record
of the petitioner is placed before this Hon'ble Court and (it) speaks for
itself (Annexure R-XI to XXXVIII).
470 It is wrong to say that any extraneous
consideration operated in the Full Court Meeting against the petitioner and it
is wrong to say that the resolutions in the Court Meeting were unjust,
arbitrary or mala fide. As already pointed out, the decision was taken in Full
Court Meeting after consideration of the entire record of the petitioner, The
decision to retire the petitioner under Fundamental Rule 56(3) was after due
consideration of the entire record of the petitioner.
(Confidential entries are Annexures R-XT to
XXXVIII)." On going through the said counter affidavit we are satisfied
that apart from the confidential records, nothing else appears to have been
relied on by the High Court to reach the decision that the appellant should be
compulsorily retired. We shall now proceed to Examine the confidential rolls
maintained in respect or the appellant.
The Confidential Reports in respect of the
appellant are placed before us. lt is stated by the Registrar of the High Court
in Para 13 of the counter affidavit that the appellants performance for 28
years was taken into consideration for screening under Fundamental Rule 56(3),
The High Court has relied on some adverse remarks relating to 1959-60 or
thereabouts, lt is true that in the early part of his career, the entries made
do not appear to be quite satisfactory. They are of varied kinds. Some are
good, some are-not good and some are of a mixed kind. But being reports
relating to a remote period, they are not quite relevant for the purpose of
determining whether he should be retired compulsorily or not in the year ]981,
as it would be an act bordering on perversity to dig out old files to find out
some material to make an order against an officer. We therefore, confined our
scrutiny to the reports made in respect of the appellant for about ten years
prior to the date on which action was taken against him to retire him
compulsorily. We find that all of them except for 1972-73 and 1973-74 are good
and quite satisfactory. Even in 1972-73 and 1973-74 it is stated that there was
nothing to doubt his integrity and that he was punctual in attending it to his
work. It may be noted, that the appellant was promoted as an Additional
District & Sessions Judge on January 8, 1974 and was also confirmed with
effect from November 25, 1974 by an order passed in 1976. Any adverse report in
respect of an earlier period unless it had some connection with any event which
took place subsequently cannot, therefore, reasonably form a basis for forming
an opinion about the work of the appellant.
471 We give below a few relevant extracts
from the Confidential Reports for the period subsequent to March 31, ]974 . Year
: 1975 On confidential enquiries from the members of the Bar and from other
sources nothing was found against him in respect of his integrity. During
surprise check he was found on the board in time. Enquiries from other sources
also disclosed that he usually comes in time and does not rise early and
engages himself in judicial work. This impression was gathered from judicial
After scrutiny of the cases, the following
impression was gathered. Knowledge about rules and orders, law and procedure is
adequate but the number of the interlocutory application is sometimes not
entered in the margin of the connected order-sheet in red ink.
Judgments are good with proper discussion of
Interlocutory matters are not kept unduly
pending for long time. Rules regarding pleadings, and evidence etc.
are followed. Punishments were adequate.
Examination of accused is proper. Charges framed are proper.- Record is legible
Control and supervision over the staff is satisfactory. Judicial diary calls
for no particular comments. His relations with the Bar are cordial, with no
complaints of any misbehavior with any litigants His average disposal during
the period in question was of very good category. There is nothing else to
comment in particular.
Year : 1976 Knowledge of law and judicial
Remarks about his promptness in Promptness
satisfactory the disposal of cases:
Remarks about reputation of integrity -
Nothing was found against and impartiality: his integrity or impartiality.
General Remarks: He was mostly punctual and
472 did not rise early.
Judgments were proper and contained the
required discussion of evidence Charges and examination of accused and issues
Promptness in framing of issues was marked in
recent months. Control and super vision over the staff was satisfactory.
Settling dates should not normally be of more
than two weeks as was notice in certain cases.
Interlocutory matters were generally not kept
Net Result: Good Year 1976-77 Knowledge of
Law and Judicial Satisfactory capacity:
Remarks about his promptness in Generally
prompt the disposal of cases:
Percentage of average monthly 148. 1/2,%
disposal Behaviour towards members of the Cordial Bar and Public:
General Remarks: Satisfactorily managing
heavy and exclusive civil file. Mostly punctual.
Net Result: Good Year 1977-78 Knowledge of
Law and Judicial Good capacity:
Entry against almost all the 473 columns in
the Report- Good General Remark : Has good grasp of facts and law. Judgments in
proper form and well written.
Net Results Good Year 1979-80 (a) Shri
Shrivastava begins his judicial work punctually at 11.00 A.M. and works
throughout the Court hours. So far, it appears that he has arranged his Cause
List judiciously fixing civil work for the day.
This Judge understands that there can be no
subsequent pleadings except by way of amendment of pleadings. In other words,
he understands the purport of order 8 rule 9 and order 6 rule 7 of the Civil
Procedure Code. He also understands what is pleading i e. Order 6 rule 1 of the
Civil Procedure Code as compared with oral statement. He so far appears to be equally
conversant with order 17 rule I of the Civil Procedure Code i.e. adjournment is
only granted for sufficient cause. He does no. find any difficulty in applying
law relating to pleadings and interlocutory matters. So far, his procedure
conforms to rules or pleadings, filing of documents, framing of issues and
recording of evidence.
(b) So far, on the criminal side, he frames
charges with care, records evidence with such care and prepares examination of
accused with equal care.
(c) So far, he makes a neat and legible
record. He generally supervises the work of ministerial staff.
(d) His judgments, both on civil and
criminal, so far, appear to be well written. He is prompt in his disposals
including doing work therein. His work, as a whole, so far, has been found to
be of high quality. He also takes up civil work. His relations with the Bar, so
far, appear to be cordial.
(e) The above remarks are subject to the D.O.
No. 462/C. Rs/1979 Jabalpur dated 6.3.80 of the High Court.
474 (Note: The Memo. sent to the appellant in
March, 1980 Only informed him of two remarks-(1) that the did not dispose of
Sessions trials quickly and (2) that he did not follow the amended provisions
under order 39 rule 3 of the Civil Procedure Code. The Memo. also disclosed that
the appellant did not write judgments in civil appeals according to the pattern
prescribed; that Sessions trials were not conducted quickly and that (he)
granted unduly long adjournments of about a month or so for examination of
accused and defence witnesses.
The appellant sent a prompt reply to it oil
March 28, 1980 refuting the correctness of the above remarks. We have gone
through the said reply. On going through the facts mentioned therein, we feel
that the remarks against him appear to be totally uncharitable. It shows that
the appellant has disposed of more number of cases than what ordinarily could
be disposed of during the relevant period. We are not informed of what action
was taken on his prayer for expunging the said remarks).
Year: 1980-81 His out turn-during the year
was about 200 percent. The quality of work may be classed as good. 'B'
No specific complaints were received against
him about his behaviour or integrity." The above reports no doubt speak
for themselves as stated in the counter affidavit of the additional Registrar.
But they all speak in favour of the appellant
and not against him. A perusal of these reports shows that there was nothing
against the appellant which necessitated the action which was taken against
him. In the state of the above record it was impossible to take the view that
the appellant was liable to be compulsorily retired, unless there was any other
circumstance which was adverse to him. We have found it necessary to
incorporate in this judgment the relevant confidential remarks in great detail
only to show that the action of the High Court was not called for. We may state
here that the learned counsel for the High Court very fairly stated that there
was no other circumstance against the appellant during the period subsequent to
1971 which would support the order of compulsory retirement. From what has been
stated we find that the decision taken by the High Court in respect of the
appellant is arbitrary as it was mainly based on the entries that were made
about 20 years before the date on which the decision was 475 taken Dependence
on such stale entries cannot be placed for retiring a person compulsorily,
particularly when the officer concerned has been promoted subsequent to such
entries, as held by this Court in D. Ramaswami's case (supra). In that case one
of us (Chinnappa Reddy, J.) observed thus at pages 79-80:
"In the face of the promotion of the
appellant just a few months earlier and nothing even mildly suggestive of
ineptitude or inefficiency thereafter, it is impossible to sustain the order of
the Government retiring the appellant from service. The learned Counsel for the
State of Tamil Nadu argued that the Government was entitled to take into
consideration the entire history of the appellant including that part of it
which was prior to his promotion. We do not say that the previous history of a
Government servant should be completely ignored, once he is promoted. Sometimes
past events may help to assess present conduct. But when there is nothing in
the present conduct casting any doubt on the wisdom of the promotion, we see no
justification for needless digging into the past." In the result the
judgment of the High Court is reversed and the resolution of the High Court
recommending to the Government that the appellant should be compulsorily
retired and the impugned order passed thereon under Fundamental Rule 56(3) are
quashed. The resolution of the High Court that the appellant was not fit for
promotion to the cadre of District & Sessions Judges is also quashed. The
High Court should now consider in the light of this decision whether the
appellant was entitled to be promoted as a District & Sessions Judge as on
the date on which his immediate junior was promoted and make appropriate
recommendation to the State Government. The appellant is entitled to all
consequential financial and other benefits as if the order of compulsory
retirement had not been passed.
The appeal is accordingly allowed with costs.
N.V.K. Appeal allowed.