CIVIL WRIT JURISDICTION CASE No. 12366 OF 2006. ***** In the matter of an application under Article 226 of the Constitution of India. ***** HIRA PRASAD PANDEY-------------------PETITIONER Versus THE STATE OF BIHAR & ORS--------RESPONDENTS. ***** For the Petitioner :- In person. For the Respondents:- Mr. Rakesh Kumar, G.A-9, Mr Prabhu Narayana Sharma & Mr Lala S.N. Rai, JC to GA-9. ***** P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH AND HON'BLE MR. JUSTICE C.M.PRASAD BARIN GHOSH,J.- In this writ petition, petitioner, a compulsorily retired Judicial Officer, has challenged the order dated 20th May, 2005 by which he has been compulsorily retired. We have heard the petitioner in person and the learned counsel for the respondents. In addition to the pleadings and documents annexed thereto, we have perused records as produced by the High Court for our perusal. The order by which petitioner was compulsorily 2 retired was not passed upon conclusion of a disciplinary proceeding, instead the same was passed under Rule 74(b) (ii) of the Bihar Service Code, which rule is reproduced below:- “The appointing authority concerned may after giving a Government servant at least three months’ previous notice in writing, or an amount equal to three months’ pay and allowance in lieu of such notice, require him in public interest, to retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.” Upon being selected, petitioner was directly recruited in the Bihar Subordinate Judicial Service, whereupon he joined as a Munsif [now Civil Judge (Jr. Division)] on 13.3.1984 and at the time when the impugned order was passed, petitioner was working as Additional Munsif, Benipur (Darbhanga). The said state of affair indicates that in course of his service tenure, i.e. between 13.3.1984 and 20.5.2005 petitioner did not get any promotion. Services rendered by the petitioner had been evaluated by the District & Sessions Judges of the 3 Judgeships where the petitioner remained posted from time to time and also by the Hon’ble Inspecting Judges five times. The evaluations so made were recorded in the confidential reports of the petitioner. Summary of such reports recorded by the District & Sessions Judge as handed over to us by the learned counsel for the High Court are as follows:- 1986-87 Satisfactory knowledge of law. He is industrious and efficient officer and prompt in the disposal of cases. He has maintained a reputation for honesty and impartiality. He may be vested with the power of 1st Class. No apparent defect has come to light. Efficient and well behaved officer. 1987-88 Satisfactory knowledge of law. He is industrious and efficient officer and prompt in the disposal of cases. He has maintained a reputation for honesty and impartiality. No apparent defect has come to light. He is a good, efficient and well behaved officer. His dealings with the Bar is equally good. 1988-89 Satisfactory knowledge of law. He is industrious and efficient officer and prompt in the disposal of cases. He has maintained a reputation for honesty and impartiality. No defect has come to light. He is a good, efficient and disciplined officer. His dealings with the Bar is also good. 1989-90 Good knowledge of law and procedure. 4 He is industrious and efficient officer and prompt in the disposal of cases. He has maintained a reputation for honesty and impartiality. No defect. He is intelligent, smart and competent. He is well behaved and disciplined. His relation with the members of the Bar is fair. 1990-91 He has got satisfactory knowledge of law and procedure. He is industrious and prompt in disposal of cases. He is an efficient officer. He has maintained a reputation for honesty and impartialaity. Defect, if any, - No defect. He is well behaved and disciplined. His relation with the members of the Bar is on the whole normal. He has good relationship with the colleagues. He works hard. 1990-91 Average knowledge of law and procedure. He is industrious and prompt in disposal of cases. His supervision of the distribution of business and control over the subordinate courts are good. He is an efficient officer. He has maintained a reputation for honesty and impartiality. Defects, if any – No any defect was found. He is an honest and painstaking officer. He maintained good relation with Bar and colleagues as well. 1991-92 xx xx xx 1992-93 I have no occasion to see his work during the year under report as he is under suspension since Jan. 1992, hence no comment. 1993-94 No occasion to see his work as he was under suspension during the period under report. 5 1994-95 Average knowledge of law and procedure. Industrious and disposal of cases – average. An average efficiency. Nothing against his integrity and impartiality was reported. He has been placed in the permanent court of Munsif. Defects – Not known. An average officer with sober temperament. His conduct as Judicial Officer has been good. He maintained good relationship with the members of the Bar and Judicial officers. 1995-96 Knowledge of law and procedure – Average. Is he industrious and prompt in the disposal of cases? Capable of improvement. Is he an efficient officer? Average. Has he maintained a reputation for honesty and impartiality? Yes, Defects – Nil. His work, conduct, relation with Bar and officers good. 1996-97 Knowledge of law and procedure – Average. Is he industrious and prompt in the disposal of cases? – Capable of improvement. Is he an efficient officer? – Average. No any complaint against his honesty and impartiality made before me. His work, conduct, relation with Bar and officers fair. 1997-98 Knowledge of law and procedure – Normal. Is he industrious and prompt in the disposal of cases? Average. Is he an efficient officer? – Normally efficient. An officer of general judicial personality. 1998-99 Knowledge of law and procedure –Fair. Is he industrious and prompt in the disposal of cases? – Average. Is he an efficient officer? – Average. Has he maintained a reputation for honesty and impartiality? – Yes. Defects – No. 6 He is an average good officer. 1999-2000 Knowledge of law and procedure – Above average. Is he industrious and prompt in the disposal of cases? – Yes. He is an officer of average efficiency. He does not enjoy a good reputation, so far. Is he fit for the exercise of any enhanced power? – I do not think so. Defects – As in Column no. 5. He is an officer of average merit, who has not maintained good and congenial relationship with the members of Bar, his colleagues and staff. 2000-2001 Average knowledge of law and procedure. Is he industrious and prompt in the disposal of cases? – Average. An officer of average efficiency. Regarding reputation for honesty and impartiality, he should be kept under watch for some time. Is he fit for the exercise of any enhanced power? If so, which? – He should be kept under watch for some time. So, it may be considered thereafter. No apparent defect found. He should exert more to improve his performance and should maintain good relationship with all concerned. 2001-2002 Average knowledge of law and procedure. Is he industrious and prompt in the disposal of cases? – Satisfactory. An average officer. Several complaints touching his integrity and reputation were received for which the matter has been reported to the Hon’ble Court. He has not maintained good reputation for his honesty and impartiality. Is he fit for the exercise of any enhanced power? If so, which? – No. A quarrelsome and desperate officer. Not a good Judicial Officer. 2002-2003 Good knowledge of law and procedure. 7 Industrious and prompt in disposal of cases. Is his supervision of the distribution of business among and his control over the Subordinate Courts good? - Yes. An efficient officer. Reg. reputation for honesty and impartiality – Complaints were received previously and he was under observation and he was under constant watch and he improved himself. He is now maintaining reputation for honesty and impartiality. His case may be considered for promotion to the rank of Subordinate Judge. No defects. He is an officer of good merit and he improved himself in the discharge of his judicial work. 2004-2005 Good knowledge of law and procedure. Industrious and prompt in disposal of cases. An efficient officer. No complaint was received. No comment regarding fitness for exercise of any enhanced power. Defects, if any. – None. The Officer has got knowledge of law. He is efficient in his work. His relationship with the members of Bar and colleagues is cordial. No complaint was received regarding his honesty and impartiality. The Five Hon’ble Inspecting Judges in October, 1985, May, 1988, February, 1997, July, 1999 and May, 2003 evaluated the services rendered by the petitioner, summary whereof is as follows:- December,1985 Average knowledge of law and procedure. Is he industrious and prompt in the disposal of cases and has he coped efficiently with heavy work? – Average. Are his judgments and orders well written and clearly 8 expressed? - `B’-Satisfactory. Is he an efficient Judicial Officer? – Nothing of note. Has he maintained judicial reputation for honesty and impartiality? – Satisfactory. Remarks about his attitude towards his Superiors, Subordinates and colleagues. – Satisfactory. Behaviour towards members of the Bar and the public. – Satisfactory. Net result – Satisfactory. May, 1988 Knowledge of law and procedure – Workable. Industrious and prompt in disposal of cases and has coped efficiently with heavy work. Are his judgments and orders well written and clearly expressed? - `B’/Satisfactory. An efficient Judicial Officer. Has maintained judicial reputation for honesty and impartiality. Remarks about his attitude towards his Superiors, Subordinates and Colleagues – Good. Good behaviour towards members of the Bar and the public. Net result - `B’/Satisfactory. February, 1997 Good knowledge of law and procedure. Industrious and prompt in disposal of cases and has coped efficiently with heavy work. Are his judgments and orders well written and clearly expressed? - `B’. An efficient Judicial Officer. Has he maintained judicial reputation for honesty and impartiality? – He was controversial at Pakur. Attitude towards superiors, subordinates and colleagues – Good. His behaviour with Bar was good, public had some grievance. He is a good officer on the average. 9 July, 1999. Satisfactory knowledge of law and procedure. Industrious and prompt. Judgments and orders to be placed in Category B+ Good. An efficient Judicial Officer. No complaint regarding judicial reputation for honesty and impartiality. Attitude towards his superiors, subordinates and colleagues – Good. Cordial behaviour towards members of the Bar and the public. Net result – Satisfactory. May, 2003. Average knowledge of law and procedure. Industrious and prompt in disposal of cases. Judgments and orders to be placed in Category - `C’ (Below Average). Is he an efficient Judicial Officer? – Requires improvement. In my discussion with the Judicial Officers and Lawyers at large they complained regarding his judicial integrity was heard. Certain complaints are being enquired into. His past record is also not good. He is warned to be careful in future. Remarks about his attitude towards his superiors, subordinates and colleagues. – Requires improvement. Behaviour towards members of the Bar and the public. – Requires improvement. Net result - `C’ (Below Average). A sub-committee of Hon’ble Judges was constituted in the year 2004 to select Munsifs for their posting as S.D.J.Ms. / Railway Magistrates. This committee proposed to transfer the petitioner, the then S.D.J.M., Patna City as S.D.J.M., Benipur (Darbhanga) 10 because of adverse remarks recorded by the Hon’ble Inspecting Judge about integrity of the petitioner. The said recommendation was accepted by the Standing Committee of the High Court at its meeting held on 27th March, 2004. One of the agendas of the meeting of the Standing Committee of the High Court held on 20th August, 2004 was to consider the matter as to whether petitioner, the then S.D.J.M., Patna City be kept under watch of the present District & Sessions Judge in view of Grade-`C’ awarded to the petitioner in his confidential report recorded on 1st May, 2003 by the Hon’ble Inspecting Judge of Patna Judgeship. In relation to the said agenda, the Standing Committee of the High Court on 20th August, 2004 decided to post the petitioner as Additional Munsif at Benipur resulting in withdrawal of his criminal power. On 30th September, 2004, the Standing Committee of the High Court was considering three agendas being Agendas No. 17, 18 & 19, which were directly connected with the petitioner. The first of them was to consider the minutes of the Hon’ble Inspecting 11 Judge of Purnea Judgeship and report of the District and Sessions Judge, Purnea in connection with allegation petition directed against the petitioner, the then S.D.J.M., Kishanganj, at that time posted as Additional Munsif, Benipur. The second of such agendas was to consider the confidential remarks recorded on 1st May, 2003 by the Hon’ble Inspecting Judge of Purnea Judgeship as also the report of the District & Sessions Judge in the light of the minutes dated 9th October, 2002 of the Hon’ble Chief Justice in connection with keeping strict vigil over the work and conduct of the petitioner, the then S.D.J.M., Patna City, then posted as Additional Munsif, Benipur (Darbhanga). The third of such agendas was to consider the report of the District & Sessions Judge, Patna as was required from him in connection with the allegation petition of Sri Rameshwar Prasad, Advocate with four others and Smt. Aarti Rani directed against the petitioner, the then S.D.J.M., Patna City and at that time posted as Additional Munsif, Benipur. These three agendas were decided in the following manner:- “After examining the entire service records of Sri Hira Prasad Pandey, the then S.D.J.M. of Kishanganj and Patna City, now posted as 12 Additional Munsif, Benipur and various reports submitted by the concerned District Judges, it is resolved that Sri Pandey, who is above 50 years of age, be made to retire from service compulsorily in lieu of notice on payment of an amount equal to three months’ pay and allowances. Let it be circulated to the Hon’ble Judges of the Court. The Government be moved accordingly.” On the said date, i.e. on 30th September, 2004, the Standing Committee of the High Court was also considering four more agendas, being Agendas No. 20(a), 20(b), 21 & 22, concerning the petitioner. The first of them was to consider the representation of the petitioner, the then S.D.J.M., Patna City and at that time posted as Additional Munsif, Benipur for expunction of adverse confidential remarks recorded in his confidential report by the Hon’ble Inspecting Judge of Patna Judgeship on 1st May, 2003 as also the minutes of the Hon’ble Inspecting Judge on the representation. The second of such agendas was to consider the supplementary representation dated 10th March, 2004 of the petitioner, the then S.D.J.M., 13 Patna City, then posted as Additional Munsif, Benipur along with earlier representation dated 25th August, 2003 for expunction of adverse confidential remarks recorded on 1st May, 2003 by the Hon’ble Inspecting Judge of Patna Judgeship. The third of such agendas was to consider the representation of the petitioner, the then S.D.J.M., Patna City at that time posted as Additional Munsif, Benipur for his promotion to higher post. The last of such agendas was to consider the representation of the petitioner, the then S.D.J.M., Patna City at that time posted as Additional Munsif, Benipur for grant of Junior Selection Grade of scale from due date. The said agendas were disposed of by the Standing Committee of the High Court on 30th September, 2004 by rejecting the representations, which were made the subject matter of the agendas, but after the resolution to compulsorily retire the petitioner was taken. On 29th November, 2004, the Registrar General of the High Court wrote the following letter to the Government:- “ No. 9051/Appt. XXIX-18-2004.Fax No.612-2222088, P.H.C.-IN Ph.:P.B.X.-2223070-79Ext. 237 14 Off.-2222111 From, Sadanand Mukherjee Registrar General High Court of Judicature at Patna. To, The Secretary to the Government of Bihar, Department of Personnel and Administrative Reform, Patna. Dated, Patna the 29th Nov., 2004. Sir, I am directed to say that after examining the entire service records as also various reports submitted by concerned District Judges in respect of Sri Hira Prasad Pandey, Additional Munsif, Benipur, who has already crossed 50 years of age, the Court are of the opinion that it is not in the public interest to retain him in service any longer and the power under Rule 74(b)(ii) of the Bihar Service Code should be exercised to make him retire from service. The court accordingly recommend that Sri Hira Prasad Pandey, Additional Munsif, Benipur be made to retire compulsorily in public interest under Rule 74(b)(ii) of the Bihar Service Code on giving him three months pay and allowances in lieu of three months prior service. I am, therefore, to request that necessary orders of the State Government giving effect to the above recommendation of the Court may be issued at the earliest. Yours faithfully, Sd/- (Illigible) 15 29.11.04 I/C Registrar General.” From the counter affidavit filed on behalf of the High Court it appears that after receipt of the aforementioned letter of the Registrar General of the High Court, the State Government requested the High Court to send all the relevant documents on the basis whereof the Court had recommended compulsory retirement of the petitioner, but the request of the State Government was refused, whereupon the Notification compulsorily retiring the petitioner was issued by the State Government, the English translation whereof is as follows:- “Patna -15, dated 20th May, 2005 S.P.-7 / Estt.1-9-01 / 2005 Ka. 4456 / Sri Hira Prasad Pandey. Government of Bihar, Personnel & Administrative Reforms Department. Notification Patna –15, Dated 20th May, 2005. S.P.-7/Estt. 1-9-01/2005 Ka. 4456 / Sri Hira Prasad Pandey. In exercise of powers conferred under Rule 74 B (II) of the Bihar Service Code, the Governor of Bihar 16 hereby declares that said Sri Hira Prasad Pandey, Addl. Munsif, Benipur shall stand retired from services from the date of service of this notification, and in lieu of three months’ prior notice, he shall be paid an amount equal to three months’ salary and allowances. By the order of the Governor of Bihar, Sd/- Rai Pramod Kumar, Joint Secretary to the Government. Sri Hira Prasad Pandey, Addl. Munsif, Benipur. Acknowledgment I, Hira Prasad Pandey, at present holding the post of Addl. Munsif, Benipur (Darbhanga), acknowledge receipt of a copy of the aforesaid original notice of retirement. S d / - H.P.Pandey Post:- Addl. Munsiff, Benipur, Darbhanga, Place:- Darbhanga Dated 24-05-05 (12.10 P.M.) Morning Court.” The impugned order was received by the petitioner, on 24th May, 2006 and on 24th June, 2006, payment in lieu of three months’ salary and allowances was made to the petitioner. From the supplementary counter affidavit filed by the High Court, it appears that the Standing Committee of the High Court at its meeting held on 24th/25th February, 1995 having found the petitioner not fit for time bound promotion refused to 17 grant the same to the petitioner. From the facts, as above, it appears that on 30th September, 2004, the Standing Committee while considering the minutes of the Hon’ble Inspecting Judge of Purnea Judgeship, the report of the District & Sessions Judge, Purnea in connection with allegation petition directed against the petitioner, confidential remarks of the Hon’ble Inspecting Judge, Patna recorded on 1.5.2003 as also the report of the District & Sessions Judge, Patna thought it fit to examine the entire service records of the petitioner instead of going into the subjects to be considered in terms of Agendas No. 17, 18 & 19. While considering the service records of the petitioner, without being influenced by the subject matters of the said agendas, as would appear from the service records of the petitioner, the Standing Committee could only gather that all throughout petitioner was adjudged as an industrious, efficient and well behaved officer, prompt in disposal of cases and had sufficient knowledge of law, the petitioner was suspended once but ultimately did not suffer a punishment order, he maintained good relationship with members of the Bar and Judicial Officers 18 and also maintained good reputation all throughout, except during the years 1999-2000, 2000-2001 & 2001-2002, and he regained the confidence of his reporting officers pertaining to his reputation during the years 2002-2003 & 2004-2005. The Standing Committee while considering the service records of the petitioner could also ascertain that in 1985 & 1988, the Hon’ble Inspecting Judges found his conduct as a Judicial Officer satisfactory and in 1997 as “Good”, although it was recorded that he was controversial at Pakur. It could also notice that in 1999 there was no complain against the petitioner regarding his judicial reputation or for honesty and impartiality before the Inspecting Judge. It was only in 2003, as depicted from the service records, the Hon’ble Inspecting Judge found that the conduct of the petitioner is “below average and he requires improvement on all branches”. It could also notice that the Inspecting Judge in 2003 reported that Judicial Officers and lawyers have complained against the petitioner regarding his judicial integrity and some of such complains were being enquired into. The question is, such being the service records of the petitioner, could the Standing Committee without being influenced by the materials, being the subject matter 19 of the said agendas, opine that the petitioner is such a dead wood that in the public interest it would be appropriate to compulsorily retire him? It was the opinion of one Inspecting Judge, as against four, that knowledge of law, promptness in disposal of cases and quality of judgments and orders of the petitioner are below average. Similarly, as against four Inspecting Judges, one Inspecting Judge commented upon the integrity of the petitioner with a rider that the same is based on complains received, some of which are being enquired into. At the same time during the service career of the petitioner stretching from 1984 though there was no complain by the reporting officers as regards knowledge of law and disposal, only in three years, the reporting officers raised a pointer as regards reputation of the petitioner without, however, indicating the basis thereof. The reporting officers of subsequent years in no uncertain terms pointed out that the petitioner has no defects. The question is whether in such circumstances, could it be opined that in public interest it would be appropriate to compulsorily retire the petitioner just by looking into his service records and by not taking into account the materials, being the subject matter of those agendas? Dispassionately 20 considered, the answer would be - `No’. The conclusion, therefore, would be that while considering the service records of the petitioner, the Standing Committee at its meeting held on 30th September, 2004 also considered the materials being the subject matter of Agendas No. 17, 18 & 19. Admittedly, the minutes of the Inspecting Judge of Purnea Judgeship and the report of the District & Sessions Judge, Purnea, being the subject matter of Agenda No. 17, the report of the District & Sessions Judge in connection with keeping strict vigil over the work and conduct of the petitioner, being the subject matter of Agenda No. 18 and the report of the District & Sessions Judge, Patna in connection with allegation petition of Sri Rameshwar Prasad, Advocate with four others and Ms. Aarti Rani directed against the petitioner, being the subject matter of Agenda No. 19, did not form part of the service records of the petitioner. The only material of Agendas No. 17, 18 & 19, which formed part of the service records of the petitioner, was the confidential report of the Inspecting Judge of the year 2003. As aforesaid, the inspection report of the Inspecting Judge of the year 2003 indicated that he has received complains against the petitioner 21 regarding his judicial integrity and some