LPA No. 870 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No. 870 of 2011 Date of decision 23 . 5.2011 Anil Gour . Appellant Versus . Punjab and Haryana High Court and others .. Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. R.Venkataramani Sr., Advocate with Mr. Suvineet Sharma, Advocate for the appellant 1. To be referred to the Reporter or not ? 2. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. 1. The instant appeal under Clause X of the Letters Patent is directed against interlocutory order dated 21.4.2011 rendered by the learned Single Judge refusing to stay the Annual Confidential Report for the year 2006-07. The appellant has been working on the post of Civil Judge (Sr.Division) and has earned 'C- Below Average integrity doubtful' report for the year 2006-07 finalized on 17.4.2007. In the main petition, the prayer made by the appellant is for quashing of the aforesaid ACR. 2. The learned Single Judge has noticed various contentions advanced on behalf of the appellant. The first contention raised was that the appellant was promoted on 23.3.2007 as Additional District and Sessions Judge (Adhoc) Fast Tract Court in pursuance of powers conferred under Rule 5 read with Section 6 of the Haryana Superior Judicial Service Rules, 2007 (for brevity 'the Rules'). In the appointment letter dated 27.4.2007 (A.2) the only condition imposed is that his promotion was to be considered LPA No. 870 of 2011 2 as premature till he passes the prescribed suitability test in accordance with the provisions of Rule 8 of the Rules. The other five officers who were promoted alongwith the appellant were also subjected to the same condition. It was also contended that the ACRs upto the years 2005-06 could have been taken into consideration and therefore the ACR for the year 2006-07 recorded on 17.4.2007 was irrelevant. According to the learned counsel for the appellant despite promotion as Addl. District and Sessions Judge (Adhoc) Fast Tract Court, the appellant was not called for taking suitability test for promotion which was held on 31.7.2007 and it lead to filing of various representations. However, the request was rejected and conveyed to the appellant vide letter dated 7.3.2011 (P.12). The reason for declining the request recorded in that order was that the ACR for the year 2006-07 has been duly conveyed to him on 11.4.2007. According to the aforesaid ACR the appellant has earned 'C'- below average integrity doubtful' report. 3. The learned Single Judge rejected the aforesaid argument on the ground that the appellant was appointed under a scheme sponsored and financed by the Central Government and the posts were created on temporary basis which have a targeted object of disposal of sessions trial. Accordingly, no procedure as prescribed under the statutory rules governing the service for regular promotion was followed. Consequently promotion so ordered would not confer any right on the appellant to hold the post. The reason for depriving the appellant from taking suitability test given by the learned Single Judge is that vide Full Court decision dated 30.10.2007 it was decided that the officers who are in the zone of consideration and did not have any 'integrity doubtful' report were alone to be called for testing their merit and suitability under Rule 8 of the Rules for regular promotion LPA No. 870 of 2011 3 under 50% quota. Accordingly, the appellant did not answer the aforesaid prescription laid down by the High Court. For the same reason he was not permitted to take suitability test even on subsequent occasions. The learned Single Judge also held that the centrally funded scheme came to an end on 31.3.2011 as no extension to the Fast Tract Courts has been given beyond that period. Accordingly, the Fast Tract Courts have come to an end and the appellant alongwith other similarly placed officers were repatriated to their substantive posts on 31.3.2011. The aforesaid order has already been given effect. 4. The learned Single Judge also noticed a new substituted scheme floated by the Government of Haryana and according to the Full Court decision dated 13.4.2011 the same procedure for promotion to the post of Additional District and Sessions Judge (Adhoc) has to be followed which is applicable for regular promotion to Superior Judicial Service. The learned Single Judge has discussed in detail Rule 6 (a) and Rule 8 of the Rules. According to Rule 8(a)(i), the ACRs for the preceding five years are required to be taken into consideration. Under proviso to Rule 8(b) of the Rules any officer having grading of 'C – integrity doubtful' in any year is not to be considered eligible for promotion. On the aforesaid basis, the learned Single Judge has rejected the prayer for staying the ACR doubting integrity of the appellant for the year 2006-07. 5. The arguments which were raised before the learned Single Judge have been repeated before us with further emphasis that ACR of the year 2006-07 would not come in the way of the appellant as it is immaterial and extraneous to his promotion which was ordered in March, 2007. It has also been stressed by Mr.R.Venkataramani, Sr. Advocate that in respect of LPA No. 870 of 2011 4 five other officers the service record upto the year 2005-06 alone was considered and in the case of the appellant alone the report of 2006-07 was taken into account and therefore it is a case of discrimination. 6. Having heard the learned counsel for the appellant, perusing the paper book and the order of the learned Single Judge, we are of the considered opinion that this appeal is liable to be dismissed for more than one reason. The Fast Tract scheme propounded by the Central Government has come to an end on 31.3.2011. It is undisputed that on account of the aforesaid fact, the appellant has been sent back to his substantive post of Civil Judge (Sr. Division). Therefore, the grievance of the appellant with regard to his non appearance in the suitability test, which was one of the conditions imposed in the appointment letter dated 27.4.2007 (A.2) does not survive for adjudication. Whether he was permitted to take the suitability best or not has become totally academic. 7. The question with regard to his promotion on regular basis under 50% quota envisaged by Rule 6 of the Rules has to be answered against the appellant because Rule 8(a)(i) and proviso to Rule 8(b) completely shut the door for the appellant as he cannot be considered eligible for promotion on account of his ACR of 'integrity doubtful'. In un-mistakable terms, the aforesaid provision makes it clear that ACRs of an officer for the preceding five years are to be taken into account and if an officer has ever earned 'integrity doubtful' then such an officer would not be eligible for consideration. The relevant portion of the Rules is reproduced hereunder: “ 6. Regular recruitment. (a) Recruitment to the service shall be made.- LPA No. 870 of 2011 5 (a) 50 percent by promotion from amongst the Civil Judges (Senior Division)/ Chief Judicial Magistrate/ Additional Civil Judges (Senior Division) on the basis of principle of merit- cum-seniority and passing of suitability test; (b) xx xx xx ( c) xx xx xx xx (2) xx xx xx xx xx” “ 8. Procedure for promotion.- For assessing and the sting the merit and the suitability of a member of the Haryana Civil Service (Judicial Branch) under rule 6(a) above, the High Court may- (a) take into consideration. i) Annual Confidential Reports for the preceding five years. ii) Inspection report of the Court of the officer made by the inspecting judge nominated by the Chief Justice during the preceding three years; iii) Inspections done by the officer of his own court and courts subordinate to him if he is assigned to him if he is assigned inspection work of those courts during the preceding three years ; iv) Self assessment report of the officer of the work during the preceding three years; v) Judgements of the cases decided by the officer during the preceding three years; and vi) Hold a written objective test (20 marks and viva voce LPA No. 870 of 2011 6 (20 marks) in order to ascertain and examine the legal knowledge and to assess the efficiency in legal filed; Provided that any officer having grading as C (integrity doubtful) in any year shall not be eligible to be considered for promotion. ” (emphasis supplied) 8. It is well settled that judicial service is not an ordinary employment in the sense that an employee has to discharge his duty from 9AM to 5 PM. The Judges have to discharge their functions which are sovereign in nature and sacred in substance. Such functions have to be performed without fear or favour, affection or ill-will upholding the constitution and the laws. We seek support from para 2 of the judgement rendered by Hon'ble the Supreme Court in the case of Nawal Singh v. State of UP and another (2003) 8 SCC 117 which reads as under: ““2. At the outset, it is to be reiterated that the judicial service is not a service in the sense of an employment. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further, the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because order of compulsory LPA No. 870 of 2011 7 retirement is based on the subjective satisfaction of the Authority.” (emphasis added) 9. Similar sentiments have been echoed in pars 47 and 48 of the judgement rendered in the case of Chandra Singh and others v. State of Rajasthan and others (2003) 6 SCC 545. 10. Proviso to Rule 8(b) of the Rules clearly stipulates that if there is an entry of 'integrity doubtful' in respect of any period then the same would render the Judicial Officer ineligible for promotion to the higher post. The aforesaid Rule is consistent with the principles laid down by Hon'ble the Supreme Court in the case of Shiv Dayal Gupta v. State of Rajasthan (2005) 13 SCC 581 where the entry doubting integrity made in the year 1983-84 was considered justified to compulsorily retire an officer in the year 2000. Accordingly it is safe to conclude that in judicial service there is no tolerance for such an officer who indulge in corruption and mal- practices. 11. In the backdrop of the aforesaid principles when we consider this matter then the appellant would not satisfy any of the three requirements necessary for grant of interim relief. The first requirement is that the person seeking interim relief must show that he has a prima facie case. The aforesaid requirement would not be satisfied if we examine this matter in the light of the observations made by Hon'ble the Supreme Court in various judgements to which reference has been made in the preceding paras. The appellant would also not be satisfying the second requirement that the balance of convenience is in his favour. If the ACR for the year 2006-07 doubting his integrity is stayed then he might be able to earn promotion during the pendency of his writ petition. However, if eventually LPA No. 870 of 2011 8 his main writ petition is dismissed then the promotion earned by him would be illegal. Obviously the officer would start discharging judicial functions and the judgements, which might be delivered by him, although would be binding between the parties but such orders may not inspire confidence as it would be viewed with suspicion. If such a course is adopted then the administration of justice and the institution would suffer an irreparable loss which would show that even the third requirement would remain unsatisfied. Hence, the prayer made by the appellant for interim directions cannot be accepted. 12. As a sequel to the above discussion, this appeal does not merit admission and the same is hereby dismissed. However, we wish to make it clear that any observation made in the preceding paras of this judgement shall not be construed as an expression of opinion on the merits of the controversy which is still pending before the learned Single Judge. This judgement only contains first blush of expression and opinion whereas the final opinion is yet to be formed by the learned Single Judge by considering the arguments of both the sides. Accordingly, the learned Single Judge shall not feel influenced by any of the observations made in this order. (M.M.Kumar) Judge (Gurdev Singh) 23.5.2011 Judge okg