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PETITIONER:

MADAN MOHAN CHOUDHARY

Vs.

RESPONDENT:

THE STATE OF BIHAR AND ORS.

DATE OF JUDGMENT: 12/02/1999

BENCH:

S.Saghir Ahmad & M. Jagannadha Rao..

JUDGMENT:

S. Saghir Ahmad.

Leave granted.

The recommendation of the High Court on the basis of

which the appellant, who held the rank of Addl. District &

Sessions Judge, was compulsorily retired from service,

exhibits the tragic fact that the highest judicial body of

the State which abhors anything done contrary to the rule of

law or done in a whimsical manner or arbitrarily, can itself

act in that manner on the administrative side. Still, the

plea that High Court Judges suffer from "split personality"

cannot be accepted for the pleasant fact that though on the

administrative side they might have had acted as ordinary

bureaucrat, once they don the robes they forget all their

previous associations and connections. The transformation

is so complete and real that even though they themselves

were part of the decision making process, they quash their

own administrative decisions in exercise of their power of

judicial review and thus maintain the majesty and

independence of the Indian judiciary in which the people

have always reposed tremendous faith. In the instant case,

however, the order of compulsory retirement dated 2.8.1997

passed by the State Government on the High Court's

recommendation has been upheld and it has fallen to our lot,

in this appeal, to scrutinise the validity of this order.

Before coming to the merits of the case, we may scan the

service record of the appellant who joined the Judicial

Service as Temporary Munsif on 15.5.1975. He was confirmed

on that post on 8.2.1980 and was promoted to the rank of

Sub-Judge with effect from 16.5.1985. He was confirmed as

Sub-Judge on 19.1.1988. The appellant was promoted to the

Superior Judicial Service in 1991 and was put to officiate

as Addl. District & Sessions Judge with effect from

15.7.1991. He was not, till the date of his compulsory

retirement, confirmed on that post. The character roll

entries, as recorded by District Judges, under whom the

appellant had worked, are as set out below:- "1975-76

(Distt.Muzaffarpur) - Quality of work satisfactory and

quantity capable of improvement. Relation with Bar

satisfactory. 1976-77 (Distt.Muzaffarpur) - Quality of work

satisfactory and quantity fair. Relation with Bar fair.

1977-78 (Distt. Gaya) - He is intelligent. His Judgments

are of average quality. Outturn is satisfactory. 1978-79 -

No remarks. 1979-80 (Distt. Munger) - On the whole his

work and conduct is average. Relationship with the members

of the Bar and the Judicial Officers has been satisfactory.

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He is laborious and painstaking. 1980-81 - No remarks.

1981-82 (Distt. Palamau) - Intelligent and hard working.

Writes good Judgments. Enjoys good relation of integrity.

1982-83 (Distt. Palamau) - Carries a good reputation

regarding his integrity. 1983-84 (Distt. Palamau) -

Shaping well as a Judicial Officer. 1984-85

(Distt.Hazaribagh) - He has satisfactory knowledge of law

and procedure. He is industrious and prompt in disposal of

cases. He is an efficient Officer. He has maintained a

reputation for honesty and impartiality. An average

Officer. Relation with Bar, colleagues and staff cordial.

1985-86 (Distt. Aurangabad) - Knowledge of law and

procedure satisfactory. He is industrious and prompt in the

disposal of cases. He is an efficient Officer. He has

maintained a reputation for honesty and impartiality during

the period. As incharge of the Nazarat and Account he

requires to exercise more effective control. Satisfactory.

Maintains good relation with the other Judicial Officers and

the Bar. 1986-87 (Distt. Aurangabad) - Knowledge of law

and procedure is satisfactory. He is industrious and prompt

in the disposal of cases. Disposal of the cases is

satisfactory. He is an efficient Officer.He writes

well-discussed judgments & orders, both Civil & Criminal.

He enjoys good reputation as an honest & impartial Officer.

Good.He maintains cordial relation with other judicial

Officer & Bar. 1987-88 (Distt.Aurangabad) - Knowledge of

law and procedure satisfactory. He is industrious and

prompt in the disposal of the cases. Disposal satisfactory.

He is an efficient Officer. None made any complaint

regarding his honesty and impartiality. He enjoys good

reputation with respect to his integrity and

laborious.Defects, if any:- No. Good. He maintains cordial

relation with judicial Officers and Bar. 1988-89 (Distt.

Aurangabad) - His knowledge of law and procedure is

satisfactory. He is industrious, an efficient Officer and

prompt in the disposal of cases. He enjoys good reputation

as an honest and impartial Officer. He is fit for

appointment as C.J.M. Defects - Nil. Good. He maintains

cordial relation with other judicial Officer, staff and Bar.

1989-90 (Distt. Begusarai) - Knowledge of law and procedure

satisfactory. He is industrious and prompt in the disposal

of cases. His supervision of distribution of business among

and his control over the subordinate Courts good. He is an

efficient Officer. He has maintained a reputation for

honesty and impartiality. Defects, if any - No. Very

frequently he loses his temper in the court but he writes

good judgment and order. 1990-91 (Distt. Begusarai) - Very

sound knowledge of law and procedure. He is industrious and

prompt in the disposal of cases. His supervision of the

distribution of business among and his control over the

subordinate Court good. He is an efficient officer. He

enjoys confidence of Bar and litigants. He is a very good

officer. Has grip and control over office and Subordinates.

Relationship with Bar and Officers cordial."

Categorisation made by the Inspecting Judges of the

High Court are as follows:-

"1984 - B (average) by Hon'ble Abhiram Singh 1987 - B

(satisfactory) by Hon'ble R.C.P. Sinha 1988 - Good by

Hon'ble S.Roy 1990 - B Plus by Hon'ble B.K. Roy"

On 14th of November, 1995 while working as District &

Sessions Judge Incharge, Madhubani, the appellant granted

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anticipatory bail to certain accused in a case under Section

307 IPC. The bail order was challenged in the High Court in

Criminal Miscellaneous Case No.18207 of 1995 which came up

before a learned Judge of the High Court who passed the

following order on 26.3.1996 :-

"The allegations as against opposite parties no.2 and

3 appear to be more serious than against the rest, although

notice was issued to all the opposite parties, it appears

from the service report that the notice is deemed to have

been validly served as the concerned opposite parties

refused to grant the receipt. In my opinion, the petitioner

should take fresh steps for service of notice against

opposite parties no.2 and 3 alone.

Let requisites etc. under registered cover with A/D

be filed by Monday(1.4.1996), failing which this

application, as against the concerned opposite parties,

shall stand rejected without further reference to a Bench.

In the meantime, the office is directed to put up this

matter on Administrative side so that the conduct of the

Officer, who granted anticipatory bail, may be examined.

The office will also disclose the name of the Sessions Judge

I/C, who passed the order on 14.11.1995.

This case was finally disposed of by the same learned

Judge on 22.7.1996 and the anticipatory bail, granted to

two of the accused, was set aside. This order contains,

inter alia, th e following observations:-

"From the order of the Sessions Judge incharge

it appears that he took into account the fact

that with respect to the occurrence a counter

case had also been instituted and, therefore,

`the chances of false implication cannot be

ruled out.' Considering the fact that two

persons on the side of the prosecution had

sustained grievous injuries on vital parts of

the body, I am unable to understand the logic.

Even if there was a counter version of the

occurrence, the court below should have

considered the manner of occurrence and the

fact that the prosecution party had sustained

grievous injuries which cannot be said to be

manufactured or self- inflicted, before coming

to the final conclusion. Such a consideration

was all the more necessary because the

opposite party were seeking the privi lege of

pre-arrest bail. It does not give cor rect

message to the public if persons accused of

causing grievious injuries on vital parts of

the body do noteven surrender to custody and

are granted anticipatory ba il. E venif in

the mat ter of cancellation of bail, the court

shoul d not make distinction between the anti

cipatory bail and regular bail;nevertheless

ifthe superior court find that the exercise of

discretion itself was not proper, subverting

the people's faith in the administration of

criminal justice, it is its duty to intervene

and set aright the wrong. Besides, as stated

above, there are also a llegati ons that the o

pposite party have been holding out threats to

the petitioner, his family members and the

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prosecution witnesses and the attitude of the

police is not helpful." (Emphasis Supplied)

In pursuance of the direction issued by the learned Judge, the

office put up a note which was considered by the Standing

Committee on 6.11.1996 and the following Resolution was adopted:-

"Agenda Decision

To consider the Order dated Having Considered the 26.3.96 passed

in Crl.Misc. office notes concerning Case No. 18207/95 against

the officer. the Sessions Judge I/C, Madhubani. (XIX-32-96).

It is resolved that the office shall put up necessary notes for

the compulsory up necessay notes for the compulsory retirement of

Sh. Madan Mohan Choudhary Addl Sessions Judge, Madhubani, under

Rule 74 of the Bihar Service Code."

The office, thereafter, prepared the necessary note for

compulsory retirement of the appellant under Rule 74 of the Bihar

Service Code. This note was considered by the Standing Committee

in its meeting held on 21.11.1996 and the following Resolution

was adopted:-

"Agenda Decision

To consider the desirability Having considered of taking action

under Rule the entire service 74 of the Bihar Service Code

records of each of against a few officers of the the following 4

Subordinate Judiciary. officers : (XIX-31-96) 1. Sh.Madan

Mohan Choudhary,Addl. Distt. & Sess. Judge, Madhubani.

It is resolved that it is

not in the public interest to

retain their services any

longer and they should,

therefore, be retired

compulsorily from service

under Rule 74(b)(ii) of the

Bihar Ser vice Code. The

above decision be placed

meeting before the of the

Full Court, scheduled to be

held on 30th November, 1996

as per Rule 3(x) of Chapter-I

Part-I of the Rules of the

High Court at Patna instead

of getting it circullated."

A Full Court meeting was convened on 30.11.1996 and

the Resolution of the Standing above) was approved. The

relevant extract of the Committee (extracted minutes of

theFull Court meeting is reproduced below:-

"Item No.7:- To consider the decision of the Standing

Committee regarding compulsory retirement of Judicial

Officers under Rule 74 of the Bihar Service Code, 1952.

The decision of the Standing Committee meeting dated

21.11.96 regarding compulsory retirement of the following

JudicialOfficers under Rule 74(b) of the BiharServiceCode,

is considered by the Full Court and the same is approved.

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1. Sri Madan Mohan Choudhary, Addl.Distt. & Sessions

Judge, Madhubani.

The State Government may be requested to give three

months pay in advance to the aforesaid officers recommended

for compulsory retirement in lieu ofthree months notice to

be given to them.

It is further resolved that the District & Sessions

Judges concerned be directed to relieve the aforesaid

officers of all their Judicial works."

The State Government, acting on the recommendation of

the High Court, compulsorily retired the appellant from

service by order dated 2.8.1997.

It may be mentioned that there were no remarks given

by the High Court to the appellant in his character roll for

theyears 1991-92, 1992-93 and 1993- 94 but these remarks

were given all at one time and he was categorised as "C"

Grade Officer. Regarding these remark s, the

oppositeparties in the counter affidavit say as under:-

"Thereafter, the petitioner was awarded Grade `C' in

his C.R. for 3 years con secutively and 3 the assessment of

petitioner's C.R. for years at one go is not a solitar

ycase but the same practice wasfollowed in the case of all

the Judicial Officers. The placing of petitioner in Grade

`C' categorymeans below average which was communicated to

him by the Registrar General by letter No.9560 dated

29.11.1996."

When these remarks were communicated to the appellant

on 29.11.1996, he filed a representation on 20.2.1997 before

the High Court andprayed that his categorisation as "C"Grade

Officer may be set aside. This representation was rejected

by the High Court on 12.12.1997.

The order of compulsory retirement, as pointed out

above, was challenged before the HighCourt in a Writ

Petition filed under Article 226 of the Constitution but the

pleas raised by the appellant were turned down and the Writ

Petition was dismissed.

Learned counselfor theappellant hascontended that the

appellant was an honest, hardworking and sincere officer who

had not, at any time, been given any adverse remark and

hisintegrity, at no stage,was ever doubted. It is contended

that an order passed by him on the judicial side by which

bail was granted to certain accused in a case under Section

307 IPC specially when there was a cross case also, could

not be made the basis of an order of compulsory retirement.

It is also contended that there was no material on the basis

of which the High Court could recommend compulsory

retirement. The whole decision making process, it is

claimed, was conducted in an arbitrary manner.

Learned counselappearing on behalf ofthe High Court as

also the State of Bihar have contended that the High Court

having resolved to vehemently had compu lsorily retire the

takena bona fide decision onan overall assessment of

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appellant in the work and conduct of the appellant and,

therefore, public it wasnot open to judicial scrutiny.

We may,at this stage, considerthe role of the High

Courts inthe matter of State Judicial Services.

The Indian Constitution provides for an independent

judiciary in every State by makinga provision for a High

Court being constitutedfor each State. The Constitution has

conferredvery wide powers and extensive jurisdiction on each

High Court, including the power of superintendence over all

the courts and tribunals in the territory over which it has

jurisdiction. Undoubtedly, one of the mostimportant wings

of the judiciary comprises of the subordinate courts as it

is in these courts that the judiciary comes in close contact

with the people. Inorder to secure the independence of the

subordinate judiciary from the Executive, Articles 233 to

237 have been placed in the Constitution. Article 233 deals

with the appointment of District Judges and provides that

appointments, posting and promotions of District Judges in

any State shall be made by the Governor in consultation with

the High Court, exercising jurisdiction in relation to such

State. The word "District Judge" has been defined in

Article 236(a) as under :

"The expression "district judge" includes judge of

a city civil Court, additional district judge,

joint district judge, assistant district judge,

chief judge of a small cause Court, chief

presidency magistrate, additional chief presidency

magistrate, sessions judge, additional sessions

judge and assistant session judge."

The expression "judicial service" has been defiin

clause (b) of Article 236 which is reproduced below:

"The expression"judicial service" means a service

consisting exclusively of persons intended to fill the post

of district judge and other civil judicial posts inferior to

the post of district judge."

Article 234 provides as under:-

"234. Recruitment of persons other district judges to

the judicial service.- Appointments of persons other than

district judges to the judicial service of a State shall be

made by the Governor of the State in accordance with rules

made by him in that behalf after consultation with the State

Public Service Commission and with the High Court exercising

jurisdiction inrelation to such State."

Article 237 gives power to the Governor to apply, by

public Notification, the provisions of this Chapter and the

Rules made thereunder to any class or classes of

Magistrates. Once such a Notification is issued, the

provisions of Articles 234, 235 and 236 will become

applicable to those Magistrates and they would become

members of the `judicial service' under the control of the

High Court.

In order to ensure their independence, the control

over the subordinate courts has been vested in the High

Court under Article 235 which provides as under :

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"Control over subrodinate Courts -- The control

over district Courts and Courts subordinate

thereto including the posting and promotion of,

and the grant of leave to, persons belonging to

the judicial service of a State and holding any

post inferior to the post of district judge shall

be vested in the High Court, but nothing in this

article shall be construed as taking away from any

such person any right of appeal which he may have

under the law regulating the conditions of his

service or as authorising the High Court to deal

with him otherwise than in accordance with the

conditions of his service prescribed under such

law."

Under this Article, the High Court's control over the

subordinate judiciary is comprehensive and over avarietyof

matters, inclu ding and grant of leave. The threewords,

namely, "posting", posting,promotion "promotion" and

"grantof leave", usedin this Article, are only illustrative

in character anddo not limit the extent of control exercised

by the High Courtover the officers of the subordinate

judiciary.

It is now well-settled by a catena of decisions (See,

for example, Mohammad Ghouse vs. State of Andhra, AIR 1957

SC 246 = 1957 SCR 414 and Chief Justice of Andhra Pradesh

vs. L.V.A. Dikshitulu, AIR 1979SC 193= 1979 (1) SCR 26 =

(1979) 3 SCC 34) that the expression "control", in Article

235 of the Constitution, includes "Disciplinary Control".

Transfers, promotions and confirmations including

transfer of District Judges or the recall of District Judges

posted on ex-cadre post or on deputation or on

administrative post etc. etc. is also within the

administrative control of the High Court. So also premature

and compulsory retirement is also within the "control" of

the High Court.

From the scheme of the Constitution, as set out above,

it will be seen thatthoughthe officers of subordinate

judiciary are basically and essentially Government servants,

their whole service is placed under the control of the High

Court and the Governor cannot make any appointment or take

any disciplinary action including action for removal or

compulsory retirement unless the High Court is "CONSULTED"

as required by the constitutional impact of boththe Articles

233 and 234 and the "control" of the High Court indicated in

Article 235.

The word "consult" in its "to ask advice" or "to take

counsel". The Governor is ordin ary meaning means thus

a"consultor" andthe High Court is the "consultee" whichis

treated as an expert body in all matters of action, service

including ap pointments, disciplinary comuplsory

retirementetc. relating to State Judicial Services. Since

theGovernor cannotact on his own unless he has consulted the

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High Court, the Constitution has conferred upon the High

Court a sacred and noble duty to give the best of advice or

opinion to the Governor; an advice tendered after due

deliberation and after taking into consideration all the

relevant material and record relating to the problemon which

consultation is made or advice is sought by the Governor.

It is, therefore, essentially a matter of trust and

confidence between the Governor andthe High Court. The High

Court cannot act arbitrarily in giving its opinion to the

Governor or else it will bea betrayal of that trust. If the

I

advice is not supportable by any material on record and

isarbitrary in character, it may not have any binding value.

It has already been pointed out by thisCourt in

Registrar, High Court of Madras vs. R. Rajiah, AIR 1988 SC

1388 = (1988) 3 SCC 211 = 1988 Supp. (1) SCR 332 that

though the High Court, in its administrative jurisdiction,

has the power to recommend compulsory retirement of a member

of the Judicial Service in accordance with the rules framed

in that regard, it cannot act arbitrarily and there has to

be material to come to a decision that the officer has

outlived his utility. It was also pointed out in thiscase

that the High Court while exercising its power of control

over the subordinate judiciary is under a constitutional

obligation to guide and protect judicial officers from being

harassed or annoyed by trifling complaints r elating to

judicia l orders sothat the and Officers ma y discharge

their duties honestly independently unconcerned by the

ill-conceived or motivated complaints,made by unscrupulous

lawyers and litigants.

In M.M. Gupta vs. State of J & K, AIR 1982 SC 1579 =

normally, as a rule, the High Court's recommendations for

the appointment of a District Judge should be accepted by

the State Government and the Governor should act on the

same. If in any particular case, the State Government for

good and weighty reasons find it difficult to accept the

recommendations, it should communicate its views to, and

have complete and effective consultation with, the High

Court. It was also pointed out that there can be no doubt

that if the High Court is convinced that the Government's

objection are for good reasons, it will undoubtedly

reconsider its earlier recommendation. Efficient and proper

judicial administration being the main object, boththe High

Court and the State Government must necessarily approach the

question in a detached manner.

Again in State of Kerala vs. A. Lakshmikutty, AIR

1987 SC 331 = 1987 (1) SCR 136 = (1986) 4 SCC 632, this

Court pointed out that the duty ofthe Governor to consult

the High Court in the appointment of District Judges is

integrated with the exerciseof his power; he must exercise

it in the manner provided by Article 233(1) or not at all.

Normally, the High Court's recommendations have to be

accepted by the State Government and the Governor has to act

on the same but if the State Government for `good and

weighty reasons' cannot agree with the High Court,

itshouldtake the the High Court into conf idence and place

before it difficulties in actingupon the recommendations.

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Let us now examine the merits ofthe case.

The character roll entries, recorded by various

District Judges, havealreadybeen reproducedby us in the

earlier part of the Judgment. Theremarksgiven by the High

Court on various occasions have alsobeen set out above. It

has also been found that there were no entries in the

character roll of the appellant for the years 1991-92,

1992-93 and 1993-94. The entries for these years were

recorded at one time simultaneously and the appellant was

categorised as "C" Grade Officer. The expression used by

the High Court in the counter affidavit, filed in this

Court, inrelation to the entries for the aforesaid three

years is that they were recorded "at one go". And, we may

add, the Officer was made to go! The date on which these

entries were made is not indicated either in theoriginal

recordor in the counter affidavit filed by the respondents.

These were communicated to the appellant on 29.11.1996 and

were considered by the Full Court on 30.11.1996 but it is

clear that these entries wererecorded at a stage when the

Standing Committee had already made up its mind to

compulsorily retire the appellant from service as it had

directed the office, on 06.11.1996, to put up a note for

compulsory retirement of the appellant. The High Court

should have considered that all entries prior to his

promotion to Superior Judicial Service were not bad and his

integrity either as amemberof the Inferior Judicial Service

or Superior Judicial Service was never doubted. The grant

of anticipatory bailin a case under Section 307 IPC

particularly when there wasa cross case could not have been

I

legally made the basis of compulsory retirement in the

particular circumstances of this case. Whatever might have

been the feeling of learned Judge who entertained and

ultimately allowed the the petition forcancellation of

bailgranted appellant, thefact remains that it was an order

passed by the on the judicial sidein all bona fides. Itmay

have been a wrongorder but it was not a motivated order

based on extraneous considerations. It was thus a case

where there was no material on the basis ofwhich an opinion

could have been reasonably formed that it would be in the

public interest to retire the appellant from service

prematurely in terms of Rule 74 of the Bihar Service Code.

The entries recorded "at one go" for the three years,

namely, 1991-92, 1992-93 and 1993-94 could hardly have been

taken into consideration. They were communicated to the

appellant on 29.11.1996 and on the next day, namely, on

30.11.1996, the Full Court took the decision to retire him

from service without giving any opportunity to him to make a

representation which, however, he did make but had the

mortification of seeing it rejected a year later in

December, 1997.

Learned counsel for the respondent contended that the

entries for the aforesaid three years cannot be excluded on

the ground that the appellant was not given the adequate

chance to represent against those entries. He referred to a

decision of a Three Judge Bench of this Court in Baikuntha

Nath Das vs. Chief Distt. Medical Officer Baripada, JT

1992 (2) SC 1 = AIR 1992 SC 1020 = 1992 (1) SCR 836 = (1992)

2 SCC 299 and contended that in view of the law laid down

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therein, the order of case, compul sory retirement, cannotbe

legally assailed particularly as thecharacter passed in the

roll entrieswhich are not even communi cated can be

takeninto considertion for purpose of forming an instant

opinion for retiringa person compulsorily in public

interest. We hardly find any merit inthis submission.

The question relating to uncommunicated adverse

entries has been the subject matter ofseveraldecisions

municated of this Court. In Union of India vs.M.E. Reddy,

AIR 1980 SC 563 = 1980 (1)SCR 736= (1980) 2 SCC 15, it was

laid down that uncommunicated adverse remarks can be relied

upon while passing an order of compulsory retirement. But

in two subsequent decisions, namely, Brij Mohan Singh Chopra

vs. State of Punjab, AIR 1987 SC 948 = (1987) 2 SCC 188 =

1987 (2) SCR 583 and Baidyanath Mahapatra vs. State of

Orissa, AIR 1989 SC 2218 = 1989 (3) SCR 803 = (1989) 4 SCC

664, it was laid down that uncommunicated adverse entries

could not be legally relied upon while making an order of

compulsory retirement. It was also laid down in

Baidyanath's case (supra) that if a representation was

pending against the adverse remarks, the adverse entries

against which the representation is made could not be taken

into consideration unless the representation itself was

considered and disposed of.

Both these decisions were considered by a Three- Judge

Bench in Baikuntha Nath Das's case (supra) and were

over-ruled and the following five principles were laid

down:-

"(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 place in the cont ext

of an order of compulsory justice have no judicial

retireme nt. This does not mean that scrutinyis

excluded altogether. High Court or this Court

would not exami ne the While the may matter as an

appellate court, they interfereif theyare

satisfied that the order is passed (a) mala fideor

(b)that it is based on no evidence or (c)that it

is arbitrary - in the sense that no reasonable

II

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

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adverse. If a government servant is promoted to a

higherpost 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 quahsed by a Court merely on the

showing that while passing it uncommunicated

adverse remarks were alsotakeninto consideration.

That circumstance by itself cannot be a basis for

interference."

This decision has since been followed in Posts &

Telegraphs Board vs. C.S.N. 1992 (2) SCR 338 = (1992) 2

SCC 317; Secretary to the Murthy, AIR 1992 SC 1368 =

Government Harijan & Tribal Welfare Department Bhuban eswar

vs. Nityananda Pa ti, AIR 1993 SC 383= (1993) Suppl. 2 SCC

39 1 and Union of Indiavs. V.P. Seth, AIR 1994 SC 1261 and

cons idered by this Court in M.S. Bindra vs . Union of

Indiaand Ors., JT 1998 (6) SC 34 = 1998 (5) Scale 45 =

(1998) 7 SCC 310 and again in The State of G ujarat &Anr.

vs. Suryakant Chunilal Shah, JT 1998 (8) SC 326 = 1998 (6)

Scale 393.

The fifth principle in Baikuntha Nath Das's case

(supra), which has already been extracted above, itself

contemplates that the mere circumstance that uncommunicated

adverse remarks were taken into consideration would not

constitute a basis for interference with an order of

compulsory retirement. In para 32 of the Judgment, the

learned Judges observed as under:-

"32. We m ay not be understood as saying either t hat

ad verse remarks need not be communicated or that the

representation s, if any, submitted by the gove rnment

servant (against such remarks) need not be considered or

disposed of. The adverse rem arks o ught to be communicated

in th e normal cour se, as required by the rules/ orders in

that behalf. Any representation m ade against them would

and should also be dealt with i n the normal course, with

reas onable promptitude. All that we are saying is that th

e act i on under F.R.56(j ) (or the rule corresponding to

it) need not await the disposal or final dis posal of such

representation or repre sentations, as the case may be. In

some cases, it may happen that some adverse remarks of the

recent years are not communicated or if communicated, the

represent ation received in that behalf are pending c onside

ration. On this account alone, the action under F.R. 56(j)

need not be held back. There is no reason to presume that

the Review Committee or the government, if it chooses to

take into consideration such uncommunicated remarks, would

not be conscious or cognizant of the fact that they are not

communicated to the government servant and that hewas not

given an opportunity to explain or rebut the same.

Similarly, if any representation made by the government

servant is there, it shall also betakeninto consideration.

We may reiterate that not only the Review Committee is

generallycomposed of high and responsible officers, the

power is vested ingovernment alone and not in a minor

official. It is unlikely that adverse remarks over a number

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of years remain uncommunicated and yet they are made the

primary basis of action. Such an unlikely situation, if

indeed present, may be indicative of malice in law. We may

mention in this connection that the remedy provided by

Article 226 of the Constitution is no less an important

safeguard. Even with its well known constraints, the remedy

is an effective check against mala fide, perverse or

arbitrary action."

(Emphasis supplied)

These observations indicate that the adverse remarks

if recorded in an employee's character roll in the "normal

course", ought to be communicated to him and if any

representation is made aginst those remarks, the said

representation should be disposed of in the "normal course"

but with promptitude. It was further emphasised that the

pendency of representation against the adverse remarks or

non-disposal of that representation would, however, not

prevent the action being taken for compulsory retirement of

the employee even on the basis of that entry either under

F.R.56(j) or anyprovision equivalent thereto.

In the instant case, the adverse remarks, namely, the

remarks for the years 1991-92, 1992-93 and 1993-94 were not

recorded in the "normal course" but were recorded "at one

go" and that too when the Standing Committee of the High

Court had already formed an opinion to compulsorily retire

the appellant from service. The representation made against

these remarks was not dealt with promptitude but was

disposed of by the High Court after a long period of one

year. These remarks which were recorded in the character

roll of the appellant "at one go" and were communicated to

the appellant on 29.11.1996, were considered by the Full

Court on 30.11.96 which approved the proposal of

compulsorily retiring the appellant from service. The

appellant had been categorised as "B" plus in 1990 by Mr.

Justice B.K. Roy. There was no categorisation for the next

three years and when the action for compulsory retirement of

the appellant was initiated by the High Court on the ground

that he had granted anticipatory bail in a case under

Section 307 IPC, categorisation for 1991-92, 1992-93 and

1993-94 was done "at one go" which is unreasonable and not

fair. Moreover, the compulsory retirement was ordered in

1996. What was the appellant's categorisation for 1994-95

and 1995-96 is not indicated in the original service record

placed before us. It is on account of these abnormalities

coupled with other strange circumstances of this case that

we are of the opinion that the categorisation of the

appellant as a "C" class officer for the years 1991-92,

1992-93 and 1993-94 could not have been legally taken into

consideration. If these remarks are excluded, principle

(iii) laid down in Baikuntha Nath Das's case (supra) becomes

applicable immediately and the impugned action of

compulsorily retiring the appellant from service cannot but

be termed as arbitrary in the sense that no reasonable

person could have come to the conclusion that the appellant

had outlived his utility as a Judicial Officer and had

become a dead wood which had to be chopped of.

For the reasons stated above, the appeal is allowed.

The judgment and order dated 22.7.1998 passed by the High

Court is set aside. The Writ Petition filed by the

appellant is allowed and the order of compulsory retirement

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dated 02.08.1997, passed by the State Government, is quashed

with all consequential benefits to the appellant. There

will be no order as to costs.