TMI Blog2010 (9) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the State of Bihar and formation of the State of Jharkhand, the services of the petitioner were allocated to the Jharkhand State by the order of the Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training), New Delhi dated 28th March, 2001. The petitioner was appointed as a Sub-Judge, Ranchi, vide Notification dated 21st April, 2001, issued by the High Court of Jharkhand and, subsequently, the petitioner was placed at the disposal of the State of Jharkhand as Under Secretary-cum-Deputy Legal Remembrancer and Law Officer in the Law Department vide order dated 1st August, 2001. 4. The High Court of Jharkhand recommended the name of the petitioner along with others for promotion to the post of Additional District Judge on Ad hoc basis vide letter dated 21st October, 2001. The petitioner was appointed as Additional District and Sessions Judge (Fast Track), on ad-hoc basis and was posted at Ranchi vide order dated 14th December, 2001. The High Court of Jharkhand on administrative side vide order dated 12th May, 2003 recommended compulsory retirement of six judicial officers including the petitioner, and in pursuance thereof, the Respondent No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have considered the rival submissions made by learned counsel for the parties and perused the record. COMPULSORY RETIREMENT 8. In Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. AIR 1992 SC 1020, this Court has laid down certain criteria for the Courts, on which it can interfere with an order of compulsory retirement and they include mala fides, if the order is based on no evidence, or if the order is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, i.e. if it is found to be a perverse order. The Court held as under: (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or the Court would not examine the matter as an appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial reports. However, there must be some tangible material against the employee warranting his compulsory retirement. 11. In State of U.P. and Anr. v. Bihari Lal AIR 1995 SC 1161, this Court held that if the general reputation of an employee is not good, though there may not be any tangible material against him, he may be given compulsory retirement in public interest and judicial review of such order is permissible only on limited grounds. The Court further held that: ....What is needed to be looked into, is the bona fide decision taken in public interest to augment efficiency in the public service. 12. In State of U.P. and Ors. v. Vijay Kumar Jain AIR 2002 SC 1345, this Court while dealing with the issue observed as under: Withholding of integrity of a government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13-6-1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory retirement. During pendency of the writ petition in the High Court, the U.P. Services Tribunal on a claim petition filed by the respondent, shifted the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis for doubting the integrity of the judicial officer. In the present-day system, reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the performance of the officer concerned from close quarters and formation of his opinion with regard to the overall reputation enjoyed by the officer concerned would be the basis. ... the lower judiciary is the foundation of the judicial system. We hope that the High Courts would take appropriate steps regularly for weeding out the dead wood or the persons polluting the justice delivery system. 15. In Chandra Singh and Ors. v. State of Rajasthan and Anr. AIR 2003 SC 2889, this Court after examining the entire evidence on record came to the conclusion that the compulsory retirement awarded to the appellant therein, Chandra Singh, a Judicial Officer, was not in consonance with law. However, considering the report of the Committee and taking note of the adverse remarks made against him, the Court refused to grant him any relief. The relevant part of the judgment reads as under: It will bear repetition to state that in terms of Rule 53 of the Pension Rules, an order for compulsory retirement can be pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fides or establish that the order of compulsory retirement was passed without application of mind. While deciding the said case, the court placed reliance upon the judgment of this Court in Vijay Kumar Jain (supra). 17. In M.P. State Cooperative Dairy Federation Ltd. and Anr. v. Rajnesh Kumar Jamindar and Ors. (2009) 15 SCC 221, this Court held that judicial review of an order of compulsory retirement is permissible if the order is perverse or arbitrary, as also where there is non-compliance of statutory duty by statutory authority but the court should not go into the factual findings. The factors not germane for passing an order of compulsory retirement should not be taken into consideration. The criteria and rules adopted by the employer must be adhered to, to determine whether the employee had become liable for compulsory retirement. An authority discharging a public function must act fairly. 18. Thus, the law on the point can be summarised to the effect that an order of compulsory retirement is not a punishment and it does not imply stigma unless such order is passed to impose a punishment for a proved misconduct, as prescribed in the Statutory Rules. (See Surender Kumar v. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpulsorily. The object always is public interest. Therefore, such entries do not lose significance, even if the employee has subsequently been promoted. The Court held as under: Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of service or qualified period of service for pension. (Emphasis added) 22. This judgment has been approved and followed by this Court in State of Gujarat v. Umedbhai M. Patel AIR 2001 SC 1109, emphasising that the entire record of the government servant is to be examined. 23. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a bench of three judges. We must regard this as a final seal to the controversy. 26. In view of the above, the law can be summarised to state that in case there is a conflict between two or more judgments of this Court, the judgment of the larger Bench is to be followed. More so, the washed off theory does not have universal application. It may have relevance while considering the case of government servant for further promotion but not in a case where the employee is being assessed by the Reviewing Authority to determine whether he is fit to be retained in service or requires to be given compulsory retirement, as the Committee is to assess his suitability taking into consideration his entire service record . 27. The instant case is to be examined in the light of the aforesaid settled legal propositions. 28. Some of the entries in the ACRs' of the petitioner of the last years, which are relevant for this purpose are being mentioned here as under: Year Remarks 1996-97 (i) Knowledge Average (ii) Promptness in disposal - Out turn Poor (iii) Net Result - Average 1997-98 (i) Promptness in Disposal Average (ii) Efficiency Average (iii) Net result - Average officer capable of improvem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by a Committee of Judges of the High Court duly constituted by Hon'ble the Chief Justice and then the report of the Committee is placed before the Full Court. A decision is taken by the Full Court after due deliberation on the matter. Therefore, there is hardly any chance to make the allegations of non- application of mind or mala fide. 30. Be that as it may, the service record of the petitioner revealed that he had not been promoted in the regular cadre of the District Judge as he was not found fit for the same because of the adverse entries. Petitioner was promoted as Additional District Judge on Ad hoc basis and posted in the Fast Track Court. It was definitely not a promotion on merit (selection). The High Court had objectively decided to recommend his compulsory retirement and the State Authorities acted accordingly. No fault can be found with the decision making process or with the decision. 31. We do not find any force in the submissions made by Shri Sunil Kumar, learned senior counsel appearing for the petitioner that the counter affidavit filed by the High Court and the State reveal that certain reports called for from the District Judge had been considered, though s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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