TMI Blog2011 (9) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... C.W.P. No. 2157 of 2002, C.W.P. No.1965 of 2002 and C.W.P. No.2362 of 2002. The appellants were the Members of Delhi Higher Judicial Service (`D.H.J.S.', for short). Mr. M.S.Rohilla and Mr. P.D.Gupta were compulsorily retired from service under Rule 56 (j) of the Fundamental Rules, read with Rule 33 of the Delhi Judicial Service Rules 1970, whereas deceased Mr. R.S.Verma was compulsorily retired from service under Rule 16(3) of All India Service (Death-cum-Retirement Benefit) Rules 1958 read with Rule 27 of the Delhi Higher Judicial Service Rules 1970, on different dates. They had challenged orders of their compulsory retirement from service by filing Writ Petitions under Article 226. Though the result of each appeal would depend on its own facts, having regard to the commonality of submissions on legal aspects, this Court had tagged these cases together and heard them one after the other. This Court proposes to dispose of the three appeals, by this common Judgment for the sake of avoiding repetitiveness of legal principles. However, the Court proposes to consider each case on its own merits. With these observations, the Court proposes to deal with appeal arising out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere written in one go and he was awarded `C` remark, which means below average. The ACRs for above mentioned three years were communicated to him on January 8, 2001 whereupon he had made representation against the same on February 16, 2001. 4. In the A.C.R. for the year 2000, he was given `C-' remark, which means his integrity was doubtful. While communicating the ACR for the year 2000, he was given a time of six weeks to make representation against the same. Such communication was received by him on September 25, 2001. On September 21, 2001 the Screening Committee of the High Court decided to retire Mr. Verma compulsorily from service. The Full Court of the Delhi High Court accepted the recommendation made by the Screening Committee in its meeting held on September 22, 2001. After acceptance of recommendation of the Screening Committee by the Full Court, entire work entrusted to him was withdrawn by a letter dated September 24, 2001. He made representation dated September 25, 2001 against the proposed order retiring him compulsorily from service. He was thereafter served with order dated September 27, 2001 retiring him compulsorily from service with effect from Septembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order retiring him compulsorily from service was liable to be set aside. (5) His representation against the entries for the years 1997, 1998 and 1999 was rejected vide letter dated October 5, 2001, which was received by him on October 8, 2001 whereas his representation dated October 13, 2001 against the entry for the year 2000 was dismissed by order dated April 5, 2002, before which order of compulsory retirement from service was passed against him on September 28, 2001 and thus non-consideration of representation before passing order of compulsory retirement had vitiated order of his compulsory retirement. (6) Before taking decision to retire him prematurely from service opportunity of being heard was not given to him. (7) The circumstances of the case indicated that the Order of compulsorily retirement passed against him was punitive, arbitrary, mala fide and in violation of the principles of natural justice. 6. In support of these submissions, Mr. Verma had relied upon decisions in (a) Baikunth Nath Das Vs. Chief District Medical Officer, Baripada (1992) 2 SCC 299; (b) Madan Mohan Choudhary Vs. State of Bihar (1999) 3 SCC 396; (c) High Court of Punjab Haryana Vs. I.C. Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples of natural justice were not attracted in case of compulsory retirement. The High Court observed that in this case the ACRs for three years were recorded at the same time which according to High Court was not proper, but held that there is no absolute proposition of law that recording of ACRs at once would be perse illegal. The High Court expressed the view that if good reasons were noted for which the ACRs could not be recorded by stipulated dates and the matter of recording of ACRs had to be deferred, the recording of ACRs of few years at one point of time would not render the same illegal. The High Court noticed the reasons as to why ACRs for the years 1997, 1998 and 1999 were recorded in one go, and thereafter held that there was sufficient explanation for recording the ACRs of three years at one time. The argument that there was no material justifying recording such ACRs was considered to be misconceived in view of settled legal position. According to the High Court the entire service record of Mr. Verma from 1995 to 2000 revealed that even for one year he had not earned Above Average remark and his performance and conduct as a judicial officer in fact had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 28.05.1999. On 24.12.1999 he attained the age of 50 years. In July 2000 the Screening Committee had reviewed the cases of various officers of DHJS including that of Mr. Gupta for premature retirement in public interest. The Screening Committee gave report dated July 17, 2000. In the report it was mentioned that the Members of the Screening Committee had gone through the service record including the ACR dossiers of the officers of Delhi Higher Judicial Service and Delhi Judicial Service who were within the zone of consideration for being considered for premature retirement in public interest at the age of 50/55 years, but they did not find, for the time being, any Officer who could be retired prematurely in public interest. The Full Court considered the report of Screening Committee in its meeting held on 22.07.2000 and accepted the report. However, on 29.07.2000 the Full Court recorded ACR of the appellant for the year 1999 as C . On ACR being communicated, to him, he filed representation dated 08.09.2000. 12. The LPA No. 329 of 1997 filed by the High Court against Judgment dated 28.05.1999 rendered by a Single Judge in W.P.(C) No. 4334 of 1997 which was filed by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompulsorily from the service. It was forwarded by the Administrator, to the High Court for necessary action. The High Court by order dated 12.02.2002 rejected the representation made by the appellant on 16.11.2001 which was addressed to Lt. Governor. The representation of the appellant against adverse ACR for the year 2000 was also rejected by the High Court vide order dated 16.03.2010. Feeling aggrieved by the order retiring him compulsorily from service the appellant filed W.P.(C) No. 2362 of 2002 in the High Court and also prayed to expunge adverse remarks in his ACR for the years 1999 and 2000. 13. On service of notice the High Court filed reply affidavit controverting the averments made in the petition. It was explained in the reply that the Screening Committee of the two learned Judges had considered the overall service record of the appellant and found that his performance and conduct were recorded as average for the years 1979-80, 1980-81, 1999, 1997 and 1998. The High Court mentioned in the reply that in the report for the year 1995, the Inspecting Judge had recorded that he had heard complaints about the integrity of the appellant. According to the High Court, again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court, on judicial side, on the ground that there was sufficient material to record the said ACR. According to the High Court the Judgment of the Division Bench of the Delhi High Court in L.P.A. was upheld by the Supreme Court which operated as res-judicata so far as the appellant was concerned. The High Court, on the basis of said fact, came to the conclusion that the action of the High Court on its administrative side, to compulsorily retire the appellant from service would be sustainable as easing out a person with integrity doubtful. The High Court noticed that so far as the ACR for the year 1999 was concerned the appellant was given C grading i.e. below average and representation made by him was rejected by the Full Court in its Meeting held on 19.05.2001. High Court after looking into the over all career profile of the appellant held that it was totally untenable to allege that there was any bias or mala fide against him. 15. In view of the above mentioned conclusions the High Court rejected the petition. 16. Thereupon, the petitioner filed Review Petition before the High Court. However, the same was withdrawn with a view to filing SLP against Judgment de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e record of the case, indicates that Full Court had accepted the report of the Screening Committee. In July, 2000 he received a communication from the High Court mentioning that his ACR for the year 1999 was graded as `B'. On 21.9.2001 he received a communication from the High Court with reference to the ACR for the year 2000 whereby he was informed that he was given Grade `C'. It was further mentioned therein that his integrity was found doubtful. By the said communication, he was given six weeks time to make a representation against the said grading. According to Mr. Rohilla, when he was awaiting the response to his previous representations made with reference to the ACRs for the years 1998 and 1999 and when he was yet to respond to the ACR for the year 2000, he received communication dated September 27, 2001 from the High Court prematurely retiring him from service under rule 56(j) of the fundamental Rules read with Rule 33 of the Delhi Subordinate Judicial Services. According to him he made a representation requesting the respondents to supply the material upon which decision was taken to prematurely retire him from service. As he was called upon to make a represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s his efficiency as a Judicial Officer was concerned. The District Sessions Judge, Delhi, in his report dated 31.5.1973 for the year 1972-73, mentioned that a complaint was pending against him in the High Court about the return of ornaments in a theft case to a party which was not entitled . Further, as directed by a Single Bench of this Court by its order dated 24.7.1973 passed in Criminal Revision No. 428/72 in re: Ramavtar Vs. State, the findings of the District Sessions Judge, Delhi, regarding the conduct of Mr. M.S. Rohilla, then working as Judicial Magistrate, First Class, were placed on his personal file. It had been noted in the aforesaid findings of the District Sessions Judge, that Mr. M.S. Rohilla should not have shown so much indecent haste in passing the order for handing over the ornaments to Jawahar Lal Gupta. Though, the District Sessions Judge, Delhi, did not find any malafide on the part of Mr. M.S. Rohilla, still according to him, he acted in a most injudicious manner due to his inexperience and suppression of the material facts by the S.H.O. while sending the report in the above noted case. The Full Court recorded `C' (Below Average) remarks for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Division Bench. After taking holistic view of the matter and the facts projected in the counter affidavit of the High Court, the Division Bench of the High Court expressed irresistible opinion that Mr. Rohilla was rightly retired compulsorily from service under FR 56 (j) of Fundamental Rules. According to the High Court, it was totally misconceived and untenable on the part of Mr. Rohilla to argue that the so-called material relied upon was only one sided view or it was not known what was the material placed before the High Court before decision to retire him compulsorily from service was taken. The High Court found that there was no force in the contention that his case could have been considered for the purpose of compulsory retirement only in the year 2001 when he was about to attain the age of 55 years in the year 2002. The High Court further concluded that it was also a wrong premise adopted by Mr. Rohilla that the High Court had based its decision solely on the basis of his ACR for the year 2000 wherein it was recorded that his integrity was doubtful. What was concluded by the High Court was that the exercise undertaken clearly revealed that his entire service record was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants for premature retirement and, therefore, the order of compulsory retirement was liable to be set aside. In support of this plea, reliance was placed on the decision of this Court in State of U.P. Vs. Chandra Mohan Nigam Others (1977) 4 SCC 345. 25. In reply to the above mentioned argument, it was pointed out by the learned Counsel for the High Court that the decision of the Committee dated July 17, 2000 was purely tentative in nature and was not a final decision. According to the learned counsel for the High Court, the use of the expression for the time being in the Minutes of the Committee would show that it was not a final decision meaning thereby the matters were to be considered in detail on a later date and final decision was to be taken later on. What was maintained was that the decision of the Committee dated July 17, 2000 was not a decision dealing each officer separately but general in nature and, therefore the phrase for the time being should be construed to mean that it was not a final decision and the cases of the appellants were deferred for being considered in future. Elaborating this contention, it was submitted that the Division Bench of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the High Court the consideration of the cases of the appellants in September, 2001 was in fact not a review of the earlier decision taken by the Screening Committee in July 2000 but it was a fresh consideration and on review of record of service of the appellants the High Court was justified in retiring the appellants compulsorily from service. Placing reliance on the decision in Haryana State Electricity Board Vs. K.C. Gambhir (1997) 7 SCC 85, it was pointed out that therein the case of the officer was considered at the age of 50 years and he was permitted to continue in service and again his case was considered at the age of 55 years and he was permitted to continue in service but he was compulsorily retired at the age of 57 years and such a decision was upheld by this Court by rejecting the plea that his case could have been considered only again at the age of 60 years. 26. This Court has considered the rival contentions raised by the learned counsel for the parties on the question whether the cases of the appellants for compulsory retirement, could have been considered again before they had reached the age of 55 years, when the Screening Committee had alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice. 29. In Delhi Judicial Service Rules, 1970, no provision for compulsory retirement has been made. Therefore, Fundamental Rule 56(j), which is, for the time being in force and applicable to Government servants holding corresponding posts envisaged under the Delhi Judicial Service Rules, 1970, shall regulate the matter of compulsory retirement of officers of Delhi Judicial Service. Fundamental Rule 56(j), which is applicable to officers of Delhi Judicial Service, reads as under:- (j) Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice: (i) if he is in Group `A' or Group `B' service or post in a substantive, quasi permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years; (ii) in any other case after he has attained the age of fifty-five years. Provided that nothing in this clause shall apply to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000 the report of the Screening Committee was considered. The true copy of extracts from the Minutes of the Meeting of the Full Court held on Saturday, the July 22, 2000 at 11.00 A.M. in the Judge Court reads as under :- Agenda : 6. To review the case of the officers of DHJS and DJS who are within the zone of consideration for being considered for premature retirement in public interest - Report dated 17.7.2000 of the Screening Committee consisting of Hon'ble Mr. Justice Arun Kumar and Hon'ble Mr. Justice S.K. Mahajan constituted pursuant to Full Court decision dated 17.01.1998. Minutes : The report of the Committee was accepted. 34. On a fair reading of the report of the Screening Committee quoted above read with the resolution adopted by the Full Court in its meeting dated July 22, 2000, it becomes evident that the cases of the appellants alone for premature retirement were not considered but cases of all the officers of Delhi Higher Judicial Service as well as that of officers belonging to Delhi Judicial Service who were within the zone of consideration for being considered for premature retirement in public interest at the age of 50/55 years were als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent of India, in consultation with the Government of Uttar Pradesh, in pursuance of the power conferred by sub-rule (3) of Rule 16 of the All India Services (Death-cum- Retirement Benefits) Rules 1958 had passed the order of compulsory retirement of the respondent in the public interest on the expiry of three months from the date of service of the order. That was challenged by Mr. Chandra Mohan Nigam by a writ petition before the Allahabad High Court. The learned Single Judge had allowed the same on the grounds of contravention of the justiciable and binding rules and because the order was based on consideration of irrelevant matters and was also vitiated by bias. Feeling aggrieved both the Union of India and the State of U.P. had appealed to the Division Bench of the High Court. The Division Bench of the High Court by an order dated April 13, 1973, dismissed both the appeals by a common judgment. The Division Bench had not agreed with all the reasons given by the learned Single Judge and had quashed the order of compulsory retirement holding that the decision of the Central Government to retire Mr. Nigam was passed on collateral facts and was, therefore, invalid. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered. After noticing the fact that the State Government had not recommended the compulsory retirement the letter proceeded to mention that the Central Government was not knowing if there were any particular reasons for taking a different view or whether it was a case of over-sight. By the said letter the Central Government had expressed opinion to have the considered views of the State Government before any decision was taken by the Central Government. On January 29, 1970, the Chief Secretary to the State Government had replied that the Review Committee had considered the character roll and the merits of the case of Mr. Nigam and found that he was suitable for continuing in service, and that the decision of the Committee was accepted by the State Government. In the reply, it was mentioned that the State Government's decision in the matter was taken after thorough consideration and that the State Government did not consider it necessary to go into this question again. No adverse decision contrary to the recommendation of the State Government was taken and communicated by the Central Government to the State Government in pursuance of the recommendation of the first Review ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been retired compulsorily from service. This is not a case wherein a review had taken place and a positive final decision to continue the appellants in service, was taken by the Screening Committee. In the case of Chandra Mohan Nigam (Supra), the case of Mr. Nigam was considered positively for retirement but a specific recommendation was made to continue him in service, by the Review Committee which was accepted by the State Government and except expressing an opinion that having regard to certain adverse remarks in his character roll, this was a fit case in which proposal for his premature retirement should have been considered, the Central Government, after receipt of reply from the State Government, had not taken any adverse decision contrary to the recommendation of the State Government, which was in turn based on the recommendation of the First Review Committee. Further, in Chandra Mohan Nigam's case itself this Court has in para 27 of the reported decision hastened to add that when integrity of an officer is in question, that will be an exceptional circumstance for which order may be passed in respect of such an officer under Rule 16(3), at any time, if other co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier, it acted very fairly and allowed him to remain in service till his representation against the adverse remarks was considered on the first occasion and subsequently, till the departmental enquiry was completed. The clear meaning of the above-mentioned observation is that even during the pendency of his representation against adverse remarks and during the pendency of departmental enquiry, Haryana State Electricity Board could have taken action of compulsorily retiring the respondent from service earlier. Thus on the basis of service record, the three Judicial Officers could have been retired compulsorily from service but a tentative decision was taken not to retire them from service at that point of time. But this tentative decision would not preclude the authority concerned from passing orders of compulsory retirement later on. 41. In Government of T.N. vs. P.A. Manickam AIR 1996 SC 2250, what is ruled by this Court is that the rule permits the appropriate authority to retire any Government servant after he has attained the age of 50 years or after he has completed 25 years of qualifying service and the rule prescribes a starting point, which is the attaining of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen Inspector General of Police Mr. Nambiar and there was a strong suspicion about his integrity was made in his A.C.R. He made a representation to expunge the entry. The Government decided that as statements were factual, it would be sufficient if entry was made to the effect that the suspension was subsequently lifted and the period was treated as on duty and that further action was not necessary as there were no good grounds to hold him guity of any of the charges leveled against him. However, on August 7, 1975, a Review Committee consisting of the Chief Secretary, Home Secretary and Inspector General of Police considered various cases of police officers including that of Mr. Reddy and made recommendations. On September 11, 1975, the Government of India, after considering report of the Review Committee, ordered compulsory retirement of Mr. Reddy in public interest. Thereupon Mr. Reddy filed writ petition in the Andhra Pradesh High Court. The Single Judge allowed the petition and quashed order of compulsory retirement. That decision was upheld by the Division Bench of the High Court, in appeal filed by State of Andhra Pradesh and Union of India. Therefore, the two appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the choice of disciplinary action which will also be open to Government, this Court M.E. Reddy's case, has held as under: - Thus, even according to the decision rendered by this Court in the aforesaid case the fact that an officer is of doubtful integrity stands on a separate footing and if he is compulsorily retired that neither involves any stigma nor any error in the order. Further, in the process of interpreting the decision in Chandra Mohan Nigam's case, this Court in para 25 of the reported decision inter-alia observed that we have already indicated above that this Court made it absolutely clear that when a person was retired under Rule 16(3) on the ground that his integrity was in question, the observations made by this Court would have no application. 43. Apart from the poor judicial performance, the appellants were also retired compulsorily from service, on the ground that their integrity was doubtful. 44. The mandate of Article 235 of the Constitution is that the High Court has to maintain constant vigil on its subordinate judiciary as laid down by this Court in High Court of Judicature at Bombay through its Registrars Vs. Shirishkumar Rangrao ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g out the dead wood or the persons polluting the justice delivery system. 46. Under the circumstances this Court is of the firm opinion that the principle laid down in Chandra Mohan Nigam's case will not be applicable to the facts of the appellants who were Members of the Delhi Higher Judicial Service. 47. Even if it is assumed for the sake of argument that the principle laid down in Chandra Mohan Nigam's case would apply with all the vigour to the facts of the appellants also, this Court finds that in respect of all the three officers, after the previous consideration in July, 2000, new material in the form of ACR for the year 2000 `C' integrity doubtful had come into existence and had become a part of their respective service records when the Full Court in its meeting held on 13.9.2001 recorded their ACRs for the year 2000. Thus the consideration by the Committee constituted for the purpose of evaluating the cases of the officers to ascertain whether they should be compulsorily retired, was subsequent in point of time, namely, on 21.09.2001 and as such it will be fully covered by the exception spelt out in Chandra Mohan Nigam's Case itself in regard to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeals arising by grant of special leave. It was pointed out that in the appeal arising out of SLP No. 314 of 2009 in the list of dates filed by Mr. P.D. Gupta it was pleaded that this plea was urged before the High Court but the same was not considered before the High Court and if that be so the remedy of the appellant is to go back to the High Court and file the review petition. What was emphasized was that Mr. Gupta had in fact filed a review petition but later on withdrawn the same without seeking any liberty to agitate this point in the Special Leave Petition or in any other proceedings and therefore, he is not entitled to urge this plea. It was emphatically pointed out by the learned counsel for the High Court that in other appeals, it is not stated by the appellants that such a plea was urged before the High Court and they having not urged such a plea in the memorandum of Special Leave Petitions, the plea raised at the delayed and belated stage should not be considered by this Court. In support of this argument, the learned counsel for the respondent relied upon decisions in (a) Daman Singh and Others Vs. State of Punjab and Others, (1985) 2 SCC 670, (b) State of Punj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emedy available to the said appellant was to approach the High Court seeking review of the Judgment. The record shows that the appellant Mr. Gupta had filed review application before the High Court, but the same was unconditionally withdrawn. At the time of withdrawal of review application, the appellant had not sought any liberty to agitate this point in Special Leave Petition before this Court. So far as two other appellants are concerned they have not stated that such a point was argued on their behalf before the High Court and was not dealt with by the High Court. Under the circumstances a question arises whether the learned counsel for the appellants should be permitted to raise such a plea before this Court at the stage of final disposal of the matters. 53.Ordinarily the Supreme Court would not entertain a new prayer at the hearing of the appeal under Article 136 when it is not raised in the High Court or in the petition seeking leave to appeal. Point not raised before the High Court but taken in Special Leave Petition will not ordinarily be allowed to be agitated before this Court. The consistent practice of this Court is that the Court does not permit a party to raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have acted in his discretion. Sub Article (3) of Article 163 stipulates that the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any Court. 56.Article 239AA inserted by the Constitution (Sixty-ninth Amendment) Act, 1991 enacts special provisions with respect to Delhi. Clause (1) of said Article states that as from the date of commencement of the Constitution (Sixty- ninth Amendment) Act, 1991 which is February 1, 1992 the Union Territory of Delhi shall be called the National Capital Territory of the Delhi and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor. Sub-clause (2) deals with the constitution of Legislative Assembly for the National Capital Territory and total number of seats of the assembly etc. Sub-clause (3) of the Article confers power on the Legislative Assembly to make laws for the whole or any part of the National Capital Territory. Sub-clause (4) with which the court is concerned, inter alia provides that there shall be a Council of Ministers consisting of not more than ten per cent of the total number of members in the Legislative Assembl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd of selection grade to the members of the judicial service, including District Judges and grant of further promotion after their initial appointment to the cadre; (f) confirmation of the District Judges who have been on probation or are officiating after their initial appointment or promotion by the Governor to the cadre of District Judges under Article 233; and (g) premature or compulsory retirement of Judges of the District Courts and of Subordinate Courts. 58.The scheme envisaged by the Constitution does not permit the State to encroach upon the area reserved by Articles 233, 234 and first part of Article 235 either by legislation or rules or executive instructions. 59.Article 235 has no concern with the conferring of jurisdiction and powers on the Court but it only relates to administrative and disciplinary jurisdiction over the subordinate Courts. Therefore, the conferment of power of the prescribed authority by the State Legislature on the Judicial Officers cannot be construed to mean that the power of the High Court under Article 235 is inoperative or inchoate as High Court alone is the sole authority competent to initiate disciplinary proceedings against Subordinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court. 62.The first contention raised by appellant Ishwar Chand Agarwal that he completed his initial period of probation of two years on November 11, 1968 and by reason of the fact that he continued in service after the maximum period of probation, he became confirmed by necessary implication, was negatived by this Court on the ground that notice dated October 4, 1968 was given at the end of the probation and the period of probation got extended till the inquiry proceedings commenced by the notice under Rule 9 came to an end. 63.The second contention on behalf of Ishwar Chand Agarwal that termination of his service was by way of punishment on the basis of charges of gross misconduct by ex-parte enquiry conducted by the Vigilance Department found favour with this Court. 64.This Court accepted the plea that the termination of his services was based on the findings of misconduct contained in about eight complaints, which were never communicated to him and High Court had abdicated the control vested in it under Article 235 by not having an enquiry through judicial officers subordinate to the control of the High Court, but asking the Government to enquire throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt and that is the broad basis of Article 235. The appellant Shamsher Singh was appointed on May 1, 1964 as Subordinate Judge. He was on probation. On March 22, 1967, the Chief Secretary issued a notice to him substantially repeating the same charges which had been communicated to him by the Registrar on December 15, 1966, and asked the appellant to show cause as to why his services should not be terminated as he was found unsuitable for the job. The appellant gave an answer. On April 29, 1967, the services of the appellant were terminated. Shamsher Singh, in the context of the Rules of Business, contended that the removal of a Subordinate Judge from service was a personal power of the Governor and was incapable of being delegated or dealt with under the Rules of Business. This Court held that the Governor can allocate the business of the Government to the Ministers and such allocation is no delegation and it is an exercise of executive power by the Governor through the Council or officers under the Rules of Business. Therefore, the contention of the appellant that the order was passed by the Chief Minister without the formal approval of the Governor was found to be unten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndidates. In response, the high Court sent its detailed comments justifying its recommendation as also reasons for the supersession of seniors along with the resolution and confidential reports as desired by the Government. Thereafter, a Cabinet sub- committee considered the matter. But the government neither communicated the recommendation of the Committee to the High Court, nor sought the High Court's views thereon and thereafter without any further intimation or discussions made the appointments in accordance with seniority. Those officers whose names were recommended by the High Court filed a writ petition under Article 226 challenging validity of the appointments. The Court granted a stay of operation of the appointment order pending disposal of the matter regarding admissibility of the petition. But ultimately in view of the agreement between the parties, the High Court declined to hear the petition on the ground of judicial propriety and vacated the order of stay and granted a certificate of fitness to the petitioners to file an appeal in the Supreme Court, holding that the point involved in the writ petition relating to the interpretation of Section 109 of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 1, 1965. On November 15, 1968 he was promoted as officiating Additional District and Sessions Judge. He was due to attain the age of 55 years on February 24, 1971. The State referred his case to the High Court for its recommendation whether he should be retired at the age of 55 years or he should be retained in service till the age of 58 years, i.e., the age of superannuation. The High Court recommended that the respondent should be reverted to his substantive post of Senior Subordinate Judge/Chief Judicial Magistrate and that he might be allowed to continue in service till the age of 58 years. The State again sought recommendation about his retirement. The High Court recommended against compulsory retirement. The State Government did not agree and retired the respondent compulsorily. The High Court in a Writ Petition filed by the respondent quashed the order. In appeal this Court examined the scope of Article 235 of the Constitution and held that control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including dismissal, removal, reduction in rank and the initial posting and of the initial promotion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration of his explanation in reply to show- cause notice under Article 311(2), the High Court recommended to the Government that the officer should be removed from service. The State Government although on its own showing was inclined to agree with the views of the High Court and with the recommendations made by it, however referred the case to the Haryana Public Service Commission for advice purporting to act under Article 320(3) of the Constitution. The Commission advised that no case had been made out against the appellant and that he should be exonerated. The Governor accepted the advice of the Commission and passed the order for reinstatement. The High Court, however, did not issue any posting order as it regarded the order of reinstatement by the Governor illegal. It even requested the Government to review its order. 72.Thereupon the appellant filed a writ petition praying for a writ of mandamus directing the high Court to issue an appropriate order of posting and also for a mandamus directing the Government to disburse full salary to him and other consequential reliefs. While the writ petition was pending the Governor compulsorily retired him. Subsequently a Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccept, forthwith, the particular recommendation, but ordinarily and as a matter of graceful routine, recommendations of the High Court are and should be always accepted by the Governor, because that is ordinarily so and should be in practice the rule as a matter of healthy convention. 74.In paragraph 28, of the reported decision this Court has held that the quality of exclusive control of the High Court does not appear to be whittled down by the constitutional device of all orders issued in the name of the Governor as the head of the State administration and, therefore, when the High Court exercising disciplinary control over the subordinate judiciary finds, after a proper enquiry, that a certain officer is guilty of gross misconduct and is unworthy to be retained in judicial service and, therefore, recommends to the Governor his removal or dismissal, it is difficult to conceive how and under what circumstances such a recommendation should be rejected by the Governor acting with the aid and advice of the Council of Ministers or, as is usually the case, of one of the ministers. It is explained by this Court in the said decision that in this context more than once the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court had decided to compulsorily retire the respondents but had not communicated the recommendations to the Governor for passing formal orders of compulsory retirement. Instead the High Court had passed the orders of compulsory retirement under FR 56 (d). As there was no formal order by the Government under FR 56 (d), this Court held that the impugned orders of the High Court were ineffective. Ultimately, this Court did not interfere with the view expressed by the Division Bench of the High Court on merits of the matter and held that the High Court was perfectly justified in quashing orders of compulsory retirement. However, this Court considered the scope of Article 235 of the Constitution and held that the test of control is not the passing of an order against a member of the subordinate judicial service, but the power to take such decision and action. The Court explained that so far as the members of the subordinate judicial service are concerned, it is the Governor, who being the appointing authority, has to pass an order of compulsory retirement or any order of punishment against such a member, but passing or signing of such orders by the Governor will not necessari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 56(d) of the Fundamental Rules is very formal in nature, for the Governor merely acts on the recommendation of the High Court by signing an order in that regard . The proposition of law laid down in this case also supports the contention of the respondents that in the matter of disciplinary action against a member of the Subordinate Judicial Service, the Governor has no option, but to pass final order on the basis of the recommendation of the High Court. 76. It may be mentioned that in this case, i.e., Registrar, High Court of Madras (supra), this Court has referred to the decision of Shamsher Singh (supra), and has thereafter ruled that Governor has to act in accordance with the recommendation of the High Court by passing an order in accordance with the decision of the High Court and the Governor cannot take any action against any member of the judicial service without and contrary to the recommendation of the High Court. 77. This Court further finds that in Registrar (Admn.) High Court of Orissa, Cuttack (Supra), decision of Orissa High Court on administrative side was required to be forwarded to the Governor for passing an order of the compulsory retirement but this was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduction in rank or termination from service, but the formal order to give effect to such a decision has to be passed only by the State Governor on the recommendation of the High Court, and it is well settled again by a catena of decisions of this Court that the recommendation of the High Court is binding on the State Government/Governor. 80. In Tej Pal Singh Vs. State of U.P. and Another, (1986) 3 SCC 604, the State Government moved the High Court in the year 1967 with proposal of premature retirement of the appellant, an Additional District and Sessions Judge. On July 8, 1968 the Administrative Judge agreed with the proposal of premature retirement after giving three months' notice. The Governor passed the order of retirement on August 24, 1968. Three days thereafter, on August 27, 1968 the Administrative Committee of the High Court gave its approval to the recommendation of the Administrative Judge earlier communicated to the State Government. Thereafter on August 30, 1968 the Additional Registrar transmitted the order of retirement to the appellant. It was actually served on the appellant on September 3, 1968. The question for consideration in this case before thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that the recommendation made by the High Court is binding on the Governor. 81.Thus, it is fairly well settled by catena of decisions of this Court that in the matter of compulsory retirement of a Judicial Officer the Governor cannot act on the aid and the advice of Council of Ministers but has to act only on the recommendation of the High Court. Though the Lt. Governor is a party to these appeals, he has not raised any plea that the recommendation made by the Delhi High Court was not binding on him and he could have acted in the matter only on the aid and advice of his Council of Ministers. Thus the order of the Lt. Governor compulsorily retiring the appellants without seeking aid and advice of his Council of Ministers is neither ultra vires nor illegal and is rightly sustained by the High Court. The Governor could not have passed any order on the aid and advice of Council of Ministers in this case. The advice should be of no other authority except that of the High Court in the matter of judicial officers. This is the plain implication of Article 235. Reliance on Article 239AA(4) is entirely out of place so far as the High Court is concerned, dealing with the judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of making any representation against the ACR for the year 2000, the order retiring him from service compulsorily was bad in law. 84.In the Appeal arising from Special Leave Petition No.27200 of 2008 it was contended by M.S. Rohilla that in the ACR for the year 2000, recorded by the Full Court on May 24, 2001, he was graded `C-Integrity doubtful' and he was communicated the said ACR and was asked to submit his representation within six weeks, but within three days thereafter i.e. on September 27, 2001 decision was taken to retire him compulsorily from service and, therefore, the order retiring him compulsorily from service was illegal. 85.In Appeal arising out of Special Leave Petition No. 314 of 2009 it was contended on behalf of P.D. Gupta that the Full Court had recorded remarks `C-Integrity Doubtful' for the year 2000, in his case, which was communicated to him vide letter dated September 22, 2001 and he was asked to file his representation against the remarks within six weeks, but without waiting for the representation to be filed by him, the High court upon the adverse remarks of 2000 had recommended his premature retirement to the Lt. Governor under F.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it has to be ascertained, whether in the order of compulsory retirement there was any element of charge or stigma or imputation or any implication of misbehaviour or incapacity against the officer concerned. Secondly, the order of compulsory retirement will be indicative of punishment or penalty if the order will involve loss of benefits already earned. Thirdly, as order of compulsory retirement on the completion of 25 years of service or an order of compulsory retirement made in the public interest to dispense with further service will not amount to an order for dismissal or removal as there is no element of punishment. Fourthly, an order of compulsory retirement will not be held to be an order in the nature of punishment or penalty on the ground that there is possibility of loss of future prospects, namely, that the officer will not get his pay till he attains the age of superannuation, or will not get an enhanced pension for not being allowed to remain a few years in service and being compulsorily retired. So far as the present cases are concerned, this Court finds that there are no words in the orders of compulsory retirement, which throw any stigma against the two appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity to the public servant to improve excellence. Article 51 A(j) of the Constitution enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Therefore, the officer entrusted with the duty to write C.R. has a public responsibility and trust to write the C.R. objectively, fairly and dispassionately while giving, as accurately as possible the statement of facts on an overall assessment of performance of the subordinate officer. Opportunity of hearing is not necessary before adverse remarks because adverse remarks by themselves do not constitute a penalty. However, when the order of compulsory retirement is passed, the authority concerned has to take into consideration the whole service record of the officer concerned which would include non- communicated adverse remarks also. Thus it is settled by several reported decisions of this Court that un- communicated adverse remarks can be taken into consideration while deciding the question whether an official should be made to retire compulsorily or not. 91. In State of U.P. and Another Vs. Bihari Lal (1994) Supp (3) SCC 593, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said case made reference to Baikuntha Nath Das vs. Chief District Medical Officer, Baripada (1992) 2 SCC 299, as well as Posts and Telegraphs Board vs. C.S.N. Murthy (1992) 2 SCC 317, and after reiterating, with approval, the principles stated therein, has laid down firm proposition of law that 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. Applying the ratio laid down in the above-mentioned two cases to the facts of the present cases, this Court finds that the authorities concerned were justified in relying upon the adverse entry made against the two appellants and the deceased officer in the year 2000 indicating that their integrity was doubtful alongwith other materials. Here in these cases, the ACRs for the year 2000 were communicated to the three officers but before they could exercise the option given to them to make representation against the same, the orders of compulsory retirement were passed. When an uncommunicated adverse entry can be taken into consideration, while passing order of compulsory retirement, there is no reason to hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was a Superintending Engineer. His case was considered under the first proviso to Rule 71(a) of the Orissa Service Code and on the basis of adverse remarks awarded to him for the last three years, i.e., for the years 1980-81, 1981-82 and 1982-83, the Review Committee had made recommendation for his premature retirement. At that time his representation against the adverse remarks relating to the first year was pending. Against the remarks for the other years, he made representations subsequently and the State Government had without disposing of these representations compulsorily retired him. The Bhubaneswar Administrative Tribunal disapproved the taking into consideration of the remarks for the first year but sustained the impugned order of compulsory retirement on the basis of remarks for the subsequent years. While allowing the appeal this Court observed that adverse entries for the years 1981-82 and 1982-83 could not have been taken into consideration for the premature retirement of the appellant, and the Review Committee should have deferred the consideration of his case till his representation against the aforesaid adverse entries was disposed of or in the alternative the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt by compulsorily retiring those who in its opinion should not be there in public interest. Thus the plea of breach of principles of natural justice was not accepted by this Court in the said case. 97. In Baikuntha Nath Das and Another Vs. Chief District Medical Officer, Baripada and Another, (1992) 2 SCC 299, the three Judge Bench of this Court had occasion to consider the question of effect of uncommunicated adverse remarks taken into consideration while passing order of compulsory retirement against the appellants of that case and scope of judicial review of the order retiring an employee compulsorily from service. The appellants in the appeals were compulsorily retired by the Government of Orissa in exercise of the power conferred upon it by the first Proviso to sub-rule (a) of Rule 71 of the Orissa Service Code. The appellant Mr. Baikuntha Nath Das was appointed as a Pharmacist by the Civil Surgeon, Mayurbhanj on March 15, 1951. By an order dated February 13 1976 the Government of Orissa had retired him compulsorily. The said Order was challenged by him in the High Court of Orissa by way of a Writ Petition. His case was that the order was based on no material and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported decisions of this Court were taken into consideration and thereafter the Court has overruled the decision in Baidyanath Mahapatra Vs. State of Orissa (1989) 4 SCC 664, which took the view that uncommunicated adverse remarks cannot be taken into consideration while passing an order of compulsory retirement against a Government servant. 98. In Baikuntha Nath Das case, after referring to decision of this Court in Brij Mohan Singh Chopra Vs. State of Punjab (1987) 2 SCC 188, where a three Judge Bench of this Court has specifically affirmed the decision rendered in Union of India Vs. M.E. Reddy (1980) 2 SCC 15, this Court has laid down following firm proposition of law stated in paragraph 34 of the reported decision: 34. The following principles emerge from the above discussion: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution to DJS Rules on the subject of retirement, providing the normal age of retirement as 60 years with proviso of compulsory retirement at the age of 58 years and for voluntary retirement at the age of 58 years and after addition of this Rule, Rule 33 of DJS Rules could not have been invoked for application of Fundamental Rules, on the subject of normal age of retirement, age of premature retirement and assessment of performance as well as age of voluntary retirement. What was emphasized was that after introduction of Rule 31A in DJS Rules the subject of premature retirement cannot be considered to be a residuary matter for which no Rule exists in DJS rules and, therefore, premature retirement of the appellants could not have been ordered before they attained the age of 58 years. 101.The learned counsel for the High Court argued that this point was given up before the High Court and, therefore, the Court should not permit the appellants to agitate the same in appeals arising from grant of special leave. In support of this submission reliance was placed by the learned counsel for the High Court on: (1) State of Maharashtra Vs. Ramdas Shrinivas Nayak Anr., (1982) 2 SCC 463, ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice it is necessary to settle the controversy once for all and, therefore, though in view of decisions cited by the learned counsel for the High Court, it is accepted as correct by this Court that the point sought to be argued was dropped before the High Court, it would not be in the interest of justice to preclude the learned counsel for the appellants from agitating this point before this Court. Under the circumstances, the Court proposes to examine the said contention on merits. 104.It is well known fact that in All India Judge's Association (Supra), this Hon'ble Court in paragraph 63(iii) directed that : Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by December 31, 1992. 105.In Second All India Judge's Association Others Vs. Union of India Others, (1993) 4 SCC 288, this Court clarified in paragraph 30 of the said judgment as under : The benefit of the increase of the retirement age to 60 years, shall not be available automatically to all judicial officers irrespective of their past records of service and evidence of their continued utility to the judicial system...................The potential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility was to be assessed and evaluated at the age of 58 years because the benefit of the increase of the retirement age to 60 years was not available automatically to all judicial officers irrespective of their past records of service. Though this Court observed that the standard of evaluation for determining the potential for continued utility should be the same as for compulsory retirement but it was specifically made clear that the assessment directed was for evaluating the eligibility to continue in service beyond 58 years of age and was in addition to and independent of the assessment for compulsory retirement that might have to be undertaken under the relevant Service Rules at the earlier stage/s. The clarification made by this Court in All India Judge's Association case No. 2 leaves the matter in no doubt that the independent assessment for compulsory retirement to be undertaken under the relevant Service Rules is not affected at all in any manner whatsoever. It is true that the performance of a judicial officer is to be evaluated for determining his utility to continue in service upto the age of 60 years but it is wrong to contend that Rule 31 overrides Rule 33, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was pending to be replied or representation against the material which was still required to be submitted, could not have been relied upon for passing order of compulsory retirement. According to him, the so called material relied upon was only one-sided view and was not the wholesome exercise which was required to be undertaken before passing order of compulsory retirement. Mr. Rohilla had further argued that there was no record of any complaints either oral or in writing nor there was any record to show whether the complaints related to his judicial work on the basis of which ACR of the year 2000 were recorded. The oral communication by members of the Bar or by office bearers of the Bar Association was thoroughly irrelevant in the absence of particulars mentioned in the ACR and, could not have been taken into consideration while passing order of compulsory retirement. 111.On behalf of the appellant Mr. P.D. Gupta, it was contended that for the year 2000 Hon'ble Mr. Justice M.S.A. Siddique was appointed as Inspecting Judge by the High Court but Hon'ble Mr. Justice Siddique had retired on 29.5.2001 without giving any Inspection Report and he had not inspected hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi Judicial Service nor in the writ petition challenging the order of compulsory retirement and, therefore, order retiring him compulsorily cannot be regarded as illegal or arbitrary. 114.While dealing with the arguments advanced on behalf of the appellant Mr. P.D. Gupta it was stressed that for two years i.e. 1994 and 1995 his ACRs were C Integrity Doubtful which were challenged by him by filing a Writ Petition and though the learned Single Judge of the High Court had allowed the Writ Petition, the Division Bench in appeal had set aside the judgment of the learned Single Judge and upheld the adverse ACRs C Doubtful Integrity for the years 1994 and 1995, against which Special Leave Petition filed by Mr. P.D. Gupta was also dismissed after which Review Petition was filed by him against the judgment of the Division Bench in Letters Patent Appeal, which was also dismissed and thus those entries having become final, it would be wrong to contend that order of compulsory retirement passed in his case was liable to be set aside. 115.On consideration of rival submissions, this Court finds that there is no manner of doubt that the nature of judicial service is such that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue him in service on his attaining the age of 50 years. Similarly, in so far as appellant Mr. P.D. Gupta is concerned for two years that is 1994 and again in 1995 his ACRs were C Integrity Doubtful and again in the year 2000, the position was the same. Further, for two years, i.e., 1994 and 1995 his ACRs C Integrity Doubtful were upheld by the Division Bench of the High Court against which his Special Leave Petition was dismissed. At this stage it would be relevant to notice certain observations made by Division Bench of the High Court while allowing the Letters Patent Appeal filed by the High Court against the judgment of the learned Single Judge by which the ACRs for two years were set aside, which are as follows: - To summarize, it is held: a) The adverse remarks recorded by the High Court in the Confidential Reports of respondent No.1 for the years 1994 and 1995 were not without any `material'. They were recorded on the basis of material on record and the judgment of the learned Single Judge quashing those remarks is hereby set aside. b) The learned Single Judge should not and could not have graded B+ to respondent No.1 as it is the function of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmally and contextually word `material' means substance, matter, stuff, something, materiality, medium, data, facts, information, figures, notes etc. When this Court is examining as to whether there was any `material' before the High Court on the basis of which adverse remarks were recorded in the confidential reports of the appellants, this `material' relates to substance, matter, data, information etc. While considering the case of a judicial officer it is not necessary to limit the `material' only to written complaints or `tangible' evidence pointing finger at the integrity of the judicial officer. Such an evidence may not be forthcoming in such cases. 120.As observed by this Court in R.L. Butail Vs. Union of India and Others, (1970) 2 SCC 876, it is not necessary that an opportunity of being heard before recording adverse entry should be afforded to the officer concerned. In the said case, the contention that an inquiry would be necessary before an adverse entry is made was rejected as suffering from a misapprehension that such an entry amounts to the penalty of censure. It is explained by this Court in the said decision that making of an adverse entry i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is exercised on the administrative side of the High Court, any judicial review thereon should be made only with great care and circumspection and it must be confined strictly to the parameters set by this Court in several reported decisions. When the appropriate authority forms bona fide opinion that compulsory retirement of a judicial officer is in public interest, the writ Court under Article 226 or this Court under Article 32 would not interfere with the order. 123.Further this Court in M.S. Bindra's case (Supra) has used the phrase `preponderance of probability' to be applied before recording adverse entry regarding integrity of a judicial officer. There is no manner of doubt that the authority which is entrusted with a duty of writing ACR does not have right to tarnish the reputation of a judicial officer without any basis and without any `material' on record, but at the same time other equally important interest is also to be safeguarded i.e. ensuring that the corruption does not creep in judicial services and all possible attempts must be made to remove such a virus so that it should not spread and become infectious. When even verbal repeated complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned judicial officer is formed, it would be difficult for the Court either under Article 226 or for this Court under Article 32 to interfere with such an exercise. Such an opinion and impression formed consciously and rationally after the enquiries of the nature mentioned above would definitely constitute material for recording adverse report in respect of an officer. Such an impression is not readily formed but after Court's circumspection, deliberation, etc. and thus it is a case of preponderance of probability for entertaining a doubt about integrity of an official which is based on substance, matter, information etc. Therefore, the contention that without material or basis the adverse entries were recorded in the ACR of the appellants cannot be upheld and is hereby rejected. 125.On behalf of deceased R.S. Verma his learned Counsel had argued that ACRs for the years 1997, 1998 and 1999 were written in one go which is arbitrary and constitute malice in law. Pointing out to the Court that normal procedure followed by the Delhi High Court for communicating the ACRs is referred to in the circular dated 4.9.1998, according to which conducting of inspection and making of enqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved. The mental impressions may fade away or get embellished. Events of succeeding years may cast their shadow on assessment of previous years. In a given case, proper inspection might not have been conducted nor notes/findings of inspection might have been properly maintained. In such a case, there is every possibility of a judicial officer being condemned arbitrarily for no fault on his part. Therefore, recording of entries for more than one year, later on, at the same time should be avoided. However, the learned counsel for the respondent is right in contending that no decision has taken the view that merely for the reason that ACRs for more than one years are recorded at one point of time, the same are bad or that they would cease to be ACRs for the relevant years or that they should not be taken into consideration for any purpose or for the purpose of compulsory retirement. As stated earlier, in the normal course it would not be appropriate to record the ACRs of number of years at one point of time. However, at the same time it is not possible to lay down as an absolute proposition of law that irrespective of good, cogent, plausible and acceptable reasons, recording of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The matter was thereafter placed before the Full Court and the ACRs of the deceased officer were recorded for the years 1997, 1998 and 1999 on 13.12.2000. Thus there is sufficient explanation for recording the ACRs of three years at one time. It is wrong to contend that the ACRs for the years 1997, 1998 and 1999 should have been ignored while passing the order of compulsory retirement against the deceased officer. Therefore, the argument that ACRs for those years could not have been taken into consideration while deciding the question of suitability or otherwise to continue the deceased officer in service on attaining the age of 50 years, is hereby rejected. Even if it is assumed for the sake of argument that ACRs recorded for the three years, i.e., 1997, 1998 and 1999 recorded at one go, irrespective of reasons, good, bad or indifferent, must be ignored for all time to come and for all the purposes, this Court finds that the ACRs for the year 1999 were recorded with promptitude and without any delay in the year 2000. It is not argued on behalf of the deceased officer that there was any delay in recording ACRs for the year 1999. For the year 1999, the deceased officer was ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the writ petition, filed by Mr. Rohilla against his reversion is concerned, this Court finds that the order of compulsory retirement was not passed to render the said petition infructuous. The order of compulsory retirement has been passed on assessment of whole service record of Mr. Rohilla. Thus, Mr. Rohilla has failed to substantiate the plea that the order of his compulsory retirement is either mala fide or arbitrary or perverse. 130.Mr. R. S. Rohilla had argued that the order of the Lt. Governor compulsorily retiring him from service was by invoking FR 56(j) which was not applicable to his case as he was a member of a Delhi Higher Judicial Service and such an order could have been passed only under Rule 27 of the Delhi Higher Judicial Service read with Rule 16 of the Indian Administrative Services and, therefore, the same should be set aside. It is rightly pointed out by the learned counsel for the High Court that though the said plea was raised by Mr. Rohilla the same was given up before the High Court, and it is so recorded by the Division Bench in paragraph 31 of the impugned judgment. Thus, in normal circumstances, Mr. Rohilla would not be justified in arguin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reer, he had been assessed and graded either as average officer or officer below average and in the year 2000, his integrity was found to be doubtful. The Screening Committee had also found that for the year 1998, the Inspecting Judge of Mr. Verma had made a remark that the judgments and orders written by him were just average; whereas the Inspecting Judges for the year 1996 to 2000 had not recorded any remark concerning his judicial reputation for honesty and impartiality and the column Net Result was left to be recorded by the Full Court. The record further shows that the judicial work was withdrawn from him with effect from December 8, 2000 upon the recommendation of the Committee of Judges in its report dated December 6, 2000. This decision was never challenged by him before any authority. It goes without saying that withdrawal of judicial work from a judicial officer is a serious matter and such a drastic order would not have been passed unless the judicial work performed by him was found to be shocking and perverse. Later on, all work including administrative work was withdrawn from him. Further, pursuant to the decision taken by the Full Court in its meeting held o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority to retire him from service cannot be said to be illegal in any manner whatsoever. 134.So also, the record of Mr. P.D. Gupta shows that he joined Delhi Judicial Service on January 28, 1978. Admittedly, his work and conduct from 1978 to 1992 was graded as B , which means his performance was that of an average officer. In the year 1995, the Inspecting Judge had reported that though he had not inspected the court of Mr. Gupta, he had heard complaints about his integrity and, therefore, column Nos. 6 and 7 were left blank to be filled up by the Full Court. On May 18, 1986, the Full Court had recorded his ACR for the year 1994-95 as C (integrity doubtful) and on the basis of the same, denied promotion to him. He had filed a representation against the same, but it was rejected by the High Court by an order dated September 5, 1997. Again on September 26, 1997, the Full Court of Delhi High Court had recorded his ACR for the year 1996 as B . Against rejection of his representation, which was made with reference to ACRs for the year 1994- 95, he had filed Writ Petition (C) No. 4334 of 1997 and in the said writ petition he had made a grievance for his non- promotion to Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor capricious nor can be said to be so irrational, so as to shock the conscience of this Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions, a vast range of multiple factors play a vital and important role and no one factor should be allowed to be blown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. In the very nature of things, it would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court is convinced that some real injustice, which ought not to have taken place, has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court. Viewed thus, and considered in the background of the factual details and materials on record, there is absolutely no need or justification for this Court to interfere with the impugned proceedings. Therefore, the three appeals fail and are dismissed. Having regard to the facts of the case, there shall be no order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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