TMI Blog2012 (2) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 and his services were confirmed as Munsif in the year 1980. Subsequently, in the year 1986, he was promoted to the rank of Sub-Judge (Civil Judge, Senior Division) and confirmed on the same rank w.e.f. 19.01.1988. In the year 1987, the Appellant was made Sub-Judge-cum-Addl. Chief Judicial Magistrate. Thereafter, in November 1989, he was posted as Chief Judicial Magistrate by the Patna High Court vide Notification dated 5.11.1989. While he was working as a Chief Judicial Magistrate at Gopalganj, an inspection was made by the portfolio Judge and on noticing certain omissions and commissions in granting bail in certain cases by the Appellant, certain adverse remarks were made against him in the note made on 09.03.1994. Further, the Appellant had also passed an Order dated 10.2.1994 granting bail to one person accused of offences punishable under Section 302 of the I.P.C. in Mohammadpur Police Station case No. 90/93. This was taken as an exception by the learned District Judge and also by the High Court while deciding the Criminal Miscellaneous Petition No. 11327/1994. The High Court of Patna vide Order dated 12.09.1994 in Cr. Misc. No. 11327 of 1994, whilst commenting adversely agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e initiation of the departmental proceedings against the Appellant by framing the Articles of Charges. Accordingly, the Appellant was served Articles of Charges dated 13.12.1995 containing two charges and was also asked to show cause within one month. Both the charges relate to the granting of bail indiscriminately in Mohammadpur Police Station Case No. 90/93, by the Appellant while he was discharging his functions as Chief Judicial Magistrate. Pursuant to the Show Cause, the Appellant had replied in detail on 16.01.1996 that his explanation on the said charges has already been accepted by the High Court. However, the High Court through the District Judge, Samastipur had served a notice dated 03.04.1996 to the Appellant for initiating departmental proceedings against him on the basis of Articles of Charges. The Appellant had submitted his reply statement dated 11.06.1996 and 22.06.1996 wherein he had specifically contended that on the same set of charges, he had already offered his explanation on 21.12.1994 and the same was placed before the Standing Committee consisting of Hon'ble the Chief Justice and also other learned Judges of the High Court in its meeting dated 5.1.1995 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, however, dismissed the W.P. No. 5 of 2002 vide Order dated 18.01.2002 with liberty to avail alternative remedy under Article 226 of the Constitution of India. Accordingly, the Appellant filed a Writ Petition No. 2856 of 2002 under Article 226 before the Jharkhand High Court. 17. The Respondents herein had brought to the notice of this Court in Writ Petition (C) No. 547 of 1999 that the Appellant had retired from service and therefore, this Court transferred the pending proceedings in W.P.(C) No. 547/1999 to the Jharkhand High Court for its consideration and decision. On transfer, the same was registered as W.P. No. (S) 1620 of 2003 before the High Court. 18. By the impugned judgment, the High Court has rejected both the writ petitions filed by the Appellant. That is how the Appellant is before us in this Civil Appeal. 19. Learned Counsel for the Appellant submitted that the order of reversion, whereby the Appellant was reverted from the post of Chief Judicial Magistrate to that of Munsif (Civil Judge, Junior Division) is smacked with arbitrariness and contrary to the norms of service law jurisprudence and therefore, is bad in law. While elaborating his submission, the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt was justified in passing the order dated 21.4.1998 in reverting the Appellant from the post of Chief Judicial Magistrate to the rank of Munsif (Civil Judge, Junior Division); and Whether the High Court was justified in passing the order of compulsorily retiring the Appellant from service in public interest. 24. To answer the first issue, we may have to notice the observations made by the learned Inspecting Judge in Criminal Miscellaneous Petition No. 11327 of 1994. The same is extracted: In the present case, as stated above, the grant of bail by the Chief Judicial Magistrate itself was against the statutory provision contained in Section 437 of the Code as the materials on the record clearly show that there was reasonable ground for believing that the Petitioner has been guilty of an offence punishable with death or imprisonment for life. The grant of bail itself was not permissible in law and virtually the Chief Judicial Magistrate has surrendered his judicial discretion to some other consideration. 25. In pursuance to certain directions issued in the aforesaid Criminal Miscellaneous Petition, the High Court had called for the explanation from the Appellant. Pursuant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpleted enquiry proceedings is set aside by a competent forum on a technical or on the ground of procedural infirmity, fresh proceedings on the same charges is permissible. In the present case, a charge memo was issued and served on the Appellant. A reading of the charge memo does not contain any reference to the proceedings of the Standing Committee at all. It is also not found as to whether the earlier proceedings has been revived in accordance with the procedure prescribed. In fact, after receipt of the charge memo, the Appellant, in his reply statement, had brought to the notice of the enquiry officer that on the same set of charges, a notice had been issued earlier and after receipt of his explanation dated 21.12.1994, the Standing Committee, after accepting his explanation had dropped the entire proceedings and the same had been communicated to him by the Registrar General of the High Court by his letter dated 02.02.1995. In spite of his explanation in the reply statement filed, the enquiry officer has proceeded with the enquiry proceedings and after completion of the same, has submitted his report which has been accepted by the disciplinary authority. Therefore, in these cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference. Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above. 29. In Madan Mohan Choudhary v. State of Bihar (1999) 3 SCC 396, this Court was considering the order of compulsory retirement of the Appellant, who was a Member of the Superior Judicial Service in the State of Bihar. On a writ petition filed by the Appellant in the High Court, challenging his order of compulsory retirement by the Full Court of the High Court, the High Court on the judicial side refused to interfere and dismissed the petition. The Appellant came in appeal before this Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of compulsory retirement should be made against a member of the Judicial Service, the adequacy or sufficiency of such materials cannot be questioned, unless the materials are absolutely irrelevant to the purpose of compulsory retirement. We also add that when an order of compulsory retirement is challenged in a court of law, the Court has the right to examine whether some ground or material germane to the issue exists or not. Although, the Court is not interested in the sufficiency of the material upon which the order of compulsory retirement rests. 31. This Court in High Court of Punjab and Haryana v. Ishwar Chand Jain (1999) 4 SCC 579, has discussed the purpose, importance and effect of the remarks made during inspection which ultimately become the part of the ACR of the concerned Judicial officer. This Court has observed thus: 32. Since late this Court is watching the spectre of either judicial officers or the High Courts coming to this Court when there is an order prematurely retiring a judicial officer. Under Article 235 of the Constitution the High Court exercises complete control over subordinate courts which include District Courts. Inspection of the subordinate cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Right to Information Act, 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of the ACRs. The High Court has taken the decision on the basis of selective service record which includes the summarized ACR's, as quoted in the impugned judgment, for the selected years. The ACR for the initial years: 1975-76 and 1976-77 remarks him as capable of improvement against quality of work, the ACR's for the years: 1982-83, 1983-84 points that his work is unsatisfactory, the ACR's for the year: 1984-85, 1987-88 remark his work performance as unsatisfactory with bad reputation and quarrelsome attitude, and the ACR for the later years: 1993-94 1994-95 refers to some private complaints and remark that his powers were divested by the High Court and the ACR's for the recent years: 1997-98 1998-99 points that no defect in judicial work but disposal of cases is poor. Whereas, the Appellant furnished certain Service records which includes: the ACR recorded by inspecting Judge in the year 1985 which evaluate the Appellant as 'B'-Satisfactory against the entry Net result , further the ACR prepared by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the Appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the Appellant's work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of opinion that the order of compulsory retirement should be quashed. The Appellant will be deemed to have continued in service on the date of the impugned order. 33. Moreover, the District and Sessions Judge have the opportunity to watch the functioning of the Appellant from close quarters, who have reported favourably regarding the Appellant's overall performance except about his disposal, in the Appellant's recent ACR for the year 1997-98 and 1998-99. In view of this, the greater importance is to be given to the opinion or remarks made by the immediate superior officer as to the functioning of the concerned judicial officer for the purpose of his compulsory retirement. The immediate superior is better placed to observe, analyse, scrutinize from close quarters and then, to comment upon his working, overall efficiency, and reputation. In Nawal Singh v. State of U.P. (2003) 8 SCC 117, this Court has o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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