IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.3704 of 2005 Date of decision: 13.1.2009 Kewal Krishan Lomas -----Petitioner Vs. State of Punjab and others Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE JITENDRA CHAUHAN Present: Mr. Ashok Sharma Nabhewale, Advocate for the petitioner. Mr. Amit Chaudhary, AAG, Punajb for respondent No.1. Mr. Sumeet Mahajan, Sr.Advocate with Mr. Amandeep Singh and Mr. Rajesh Garg, Advocate for respondent No.2. Adarsh Kumar Goel,J. CWP No.3704 of 2005 1. This petition, inter-alia, seeks quashing of order dated 20.3.2003, Annexure P.9, retiring the petitioner in public interest under Clause (a) of Sub Rule 1(a) of Rule 3 of the Punjab Civil Services (Premature Retirement) Rules, 1975. 2. Case set out in the petition is that the petitioner joined service as Subordinate Judge on 20.10.1983 and till the impugned order was passed, he rendered more than 19 years of service. Out of 19 ACRs recorded in his service record, 12 are ‘Good (Plus B)’ and seven are ‘Satisfactory’. During the year 1998-99, a complaint was made against the petitioner on which regular enquiry was held but vide order dated 22.10.2002, the petitioner was advised to be careful in future. For the year 2001- 02, the Inspecting Judge recorded adverse remarks in column Nos. 3 and 6 which were conveyed to him vide letter dated 4.2.2003. The remarks are as under:- “3.Are his judgments and Scope for improvement. orders well written and clearly expressed? 6. Has he maintained Large No. of complaints judicial reputation for favouring particular for honesty and group of lawyers?” impartiality? 2 CWP No.3704 of 2005 3. The petitioner represented and was given personal hearing and the representation was thereafter rejected by the following order:- “I have considered the representation dated 25.2.2003 made by the officer. I have also heard Mr.Lomas in person at length. At the end of the representation, the officer has pleaded that he will try to improve the quality of judgments. He has also stated that henceforth he would give detailed reasons while deciding the cases. It may be noted that Mr.Lomas has been retired prematurely. I find no reason to change the opinion expressed by me earlier. Hence the representation in question is rejected.” 4. On 25.1.2003, work of the petitioner was withdrawn and thereafter, impugned order was passed. The petitioner made a representation dated 9.6.2003, which was rejected vide order dated 11.8.2003. 5. Contention raised in the petition is that the order was not based on any material and was passed as a punishment on account of bias and arbitrariness ignoring the service record 3 CWP No.3704 of 2005 containing 12 ‘Plus B’ and seven ‘Satisfactory’ entries. The High Court did not provide any material to the appropriate authority for forming its opinion. The grant of absolute discretion under Rule 3 of the Rules was violative of Articles 14 and 16 of the Constitution. There was discrimination as other officers whose instances are mentioned, have been continuing in service. At the time of issuance of notice, three months’ salary was not paid. 6. In the reply filed by the Registrar of respondent No.2 High Court, it has been stated that the impugned order was passed on 14.3.2003 while the petition was filed in this Court on 1.3.2005. It has also been, inter-alia, stated that ACR for the year 2001-02 constituted material on the basis of which the petitioner was prematurely retired. 7. We have heard learned counsel for the parties. Original record has also been produced by the learned counsel fore the High Court. 8. We find from the record that matter of review on completion of 25 years of qualifying service of the petitioner to determine his suitability for retention in service in accordance with rules and guidelines dated September 20, 1979 framed by 4 CWP No.3704 of 2005 the High Court, was placed for consideration in meeting of Full Court on 24.1.2003. In the meeting note, a précis of confidential remarks on the work and conduct of the officer was also put up as Annexure ‘C’ apart from the rules and guidelines. A decision was taken that recommendation be made to the Punjab Government that the officer, be retired forthwith on payment of three months’s pay and allowances in lieu of notice. Accordingly, letter dated 28.1.2003 was forwarded to the Secretary to Government of Punjab, Department of Home Affairs and Justice, (Judicial I Branch) alongwith personal file of the officer. Letter dated 20.2.2003 was received from the Government of Punjab pointing out that the officer did not appear to have completed 25 years of service or 50 years of age. In reply, vide letter dated 28.2.2003, the State of Punjab was informed that taking into account earlier service of the officer on the establishment of the High Court for about nine years, the officer had completed 25 years of service. Thereafter, the impugned order was passed. 9. Main contention raised on behalf of the petitioner is that decision was taken by the High Court before recording of inspection remarks for the year ending 31.3.2003 and order was 5 CWP No.3704 of 2005 passed without paying three months’ pay and allowances. There was no material for forming the opinion that it was in public interest to retire the petitioner. The record was not sent to the Governor who was an authority to pass the order in consultation with the High Court. Reliance has been placed on judgment of the Hon’ble Supreme Court in High Court of Punjab and Haryana through R.G. v. Ishwar Chand Jain and another, (1999) 4 SCC 579,paras 28 and 32, M.M.Chaudhary v. State of Bihar, (1999) 3 SCC 396, paras 25 and 32, Registrar, High Court of Madras v. R.Rajiah,(1988) 3 SCC 211 and Registrar (Admn) High Court of Orissa, Cuttack v. Sisir Kanta Satapathy (dead) by LRs and another, (1999) 7 SCC 725. 10. Learned counsel for the High Court opposed the submissions on behalf of the petitioner and submitted that ACR for the year 2001-02 was recorded on 4.1.2003, which was adverse and was conveyed to the petitioner vide letter dated 4.2.2003. The same was ‘B Average’ and as per guidelines dated 20.9.1979, an officer could continue in service after completion of 50 years or 25 years of service only if latest report was ‘B 6 CWP No.3704 of 2005 Plus’ or above. It is further pointed out from the record that the Enquiry Officer in his report dated 1.12.2001 held charges 2 and 3 proved against him and it was held that the officer had been tampering with record though the tampering was not relatable to prove that he had not pronounced the judgment on 31.10.1996, which was the main charge. ACRs for the years 1992-93, 1993- 94, 1994-95, 1995-96 and 1998-99 were ‘B-Satisfactory’. Order of compulsory retirement could be passed on subjective opinion of the competent authority that it was in public interest not to continue the officer in service. Such an order was not a punishment and principles of natural justice are not attracted. The Full Court considered the service record of the officer and the entire record was also forwarded to the Government alongwith record of the petitioner. Reliance has been placed on judgments of the Hon’ble Supreme Court in Baikuntha Nath Das and another v. Chief District Medical Officer, Baripada and another, (1992) 2 SCC 299, Para 34, State of Punjab v. Gurdas Singh, (1998) 4 SCC 92, Union of India v. M.E Reddy and another, (1980) 2 SCC 15 and M.L.Binjolkar v. state of MP, (2005) 6 SCC 224, in support of the submission that the 7 CWP No.3704 of 2005 competent authority had absolute power to retire an officer on its subjective satisfaction. Reliance was also placed on PU Myllai Hlychho and others v. State of Mizoram and others, (2005) 2 SCC 92, in support of the submission that satisfaction of Governor was not required to be personal but in constitutional sense. 11. The question for consideration is whether the impugned order suffers from any illegality so as to call for interference under Article 226 of the Constitution. 12. It is well settled that a competent authority can pass an order of compulsory retirement after the prescribed length of service or after attaining the prescribed age and such an order does not operate as punishment so as to attract the principles of natural justice or Article 311(2) of the Constitution. The object of such a rule is to maintain high standard of efficiency and initiative in service. Satisfaction so arrived at is not open to challenge unless the same was malafide or without any material. Even learned counsel for the petitioner does not challenge this legal position. His submission is that there was no material for the satisfaction and that though, the State Government was bound by the recommendations of the High Court, it was 8 CWP No.3704 of 2005 required to apply its mind and infact the Governor was required to apply his mind personally. 13. We do not find any merit in the submissions advanced on behalf of the petitioner. 14. From the record, it is clear that the petitioner had seven ‘Satisfactory’ reports out of 19. This fact is mentioned by the petitioner himself in para 5 of the petition. It is also clear that latest report in the case of the petitioner was ‘B-Average’, which was on record when the matter was put up for review to consider whether he be allowed to continue in service after 25 years of service or at the age of 50 years. Under the guidelines laid down by the High Court, a person could be allowed to continue in service beyond the age of 50 years only if the last report was ‘B Plus or above, which the petitioner did not have. The opinion formed by the High Court was, thus, based on objective material in the form of adverse entry against the petitioner and the guidelines uniformly applied. The entire service record of the petitioner also is not such on the basis of which it can be held that the opinion formed was arbitrary. It is on record that entire service record was sent to the Government and in the endorsement to the impugned order itself, it is 9 CWP No.3704 of 2005 mentioned that personal file of the petitioner was being returned to the High Court. The judgments relied upon by the petitioner are not applicable to the facts of the present case. 15. There is no merit in the submission that the Governor was required to be personally satisfied. The judgment in PU Myllai (supra) reiterates the legal position after referring to earlier judgments in Rai Sahib Ram Jawaya Kapur v.State of Punjab, AIR 1955 SC 549, A.Sanjeevi Naidu v.State of Madras, (1970) 1 SCC 443, UNR Rao v.Indira Gandhi, (1971) 2 SCC 63 and Shamsher Singh v. State of Punjab, (1974) 2 SCC 831. 16. In Nawal Singh v. State of UP, (2003) 8 SCC 117, it was held that compulsory retirement will not be normally interfered with in the case of judicial service. Judicial service stands on different footing as the Judges discharge sovereign powers and judicial service cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. It may be impossible to prove dishonesty by any positive evidence but those who have watched the performance of an officer may be in a position to know the nature and character of his performance and reputation. Judicial service has to be kept 10 CWP No.3704 of 2005 unpolluted. Even a solitary adverse remark can be the basis of compulsory retirement, as observed by the Hon’ble Supreme Court in HG Venkatachaliah Setty v. UOI and others, (1997) 11 SCC 366. Though, it is imperative for the High Court to protect honest judicial officers against all ill conceived or motivated complaints, dishonest performance of a member of Subordinate judiciary cannot be ignored. Reference may also be made to observations of the Hon’ble Supreme Court in High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil, AIR 1997 SC 2631 and High Court of Judicature at Bombay v. Shashikant S.Patil, AIR 2000 SC 22. 17. In view of above, we do not find any ground for interference with the impugned order. 18. The petition is dismissed. (Adarsh Kumar Goel) Judge January 13, 2009 (Jitendra Chauhan) ‘gs’ Judge 11