HIGH COURT OF ORISSA: CUTTACK O.J.C. No.6130 of 1995 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- Kailash Chandra Padhi, S/o. late Radha Krishna Padhi, Main Road, Gouda Sahi, At/P.S. Jeypore, Dist: Koraput … Petitioner -Versus- State of Orissa and another … Opp. Parties For Petitioner : M/s J.Panda & Mr. G.N. Mishra For Opp. Parties : Government Advocate ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment:02.11.2011 B.N. Mahapatra, J. In the present writ petition challenge has been made to the order dated 19.08.1995 (Annexure-7) passed by opposite party No.1-State of Orissa through Secretary to Government, Department of Law, Sachivalaya Bhubaneswar, Dist: Khurda by which opposite party No.1 prematurely retired the petitioner w.e.f. 19.08.1995 in exercise of powers conferred under clause (a) of Rule 71 of the Orissa Service Code on the ground that the said order is arbitrary, malafide and vitiated for non-application of mind. 2. Petitioner’s case in a nutshell is that he was recruited through the Orissa Public Service Commission as a Temporary Munsif in O.J.S. (Class-II) Cadre under the Emergency Recruitment Rules, 1979. After Opposite party No.1 appointed him as a Munsif on 09.01.1981, this Court posted him as an Additional Munsif in the Judgeship of Ganjam-Boudh on 14.01.1981. Subsequently, he was appointed in the rank of Munsif in the cadre of O.J.S. (Class-II) w.e.f. 27.01.1983. During his incumbency as a Munsif at various stations, there were adverse entries in his Confidential Character Roll (CCR) for the years 1984, 1985, 1986, 1987 and 1989. According to the petitioner, all these CCR entries are merely to the extent that the petitioner was peevish and that he should improve the capacity of supervision over his staff. On 30.01.1989, he was promoted to O.J.S. Class-I (Junior Branch). The High Court on careful consideration of his service performances as a Judicial Officer permitted him to cross the Efficiency Bar w.e.f. 01.01.1990 and his pay scale was accordingly raised. After getting promotion to O.J.S. Class-I (Jr. Branch) and during his incumbency in the said cadre, a proceeding was initiated against him, and after holding an inquiry this Court accepted the report of the Inquiring Officer and dropped the proceeding. The petitioner was subsequently, promoted to the cadre of O.J.S. Class-I by order of the High Court on 14.11.1994. The High Court on careful consideration of all the materials on record, restored the petitioner’s seniority by order dated 14.11.1994. On 24.03.1995, the petitioner was posted as a Civil Judge (Senior Division) at Champua. While the petitioner was continuing as such suddenly by order dated 19.08.1995, he was prematurely retired 2 with effect from the said date. Hence, the present writ petition. 3. Mr. G.N. Mishra, learned counsel appearing on behalf of the petitioner submitted that the impugned order dated 19.08.1995 passed under Annexure-7 is arbitrary, mala fide and vitiated for non-application of mind. It was submitted that the petitioner hails from the district of Koraput, which is a backward district and having come from such a background, he could not satisfy the requirements of his higher reporting officers who hail from the advanced districts of the State. The petitioner’s upbringing from a backward district in an environment of backward people of the State should not and could not lawfully stand on the way insofar as discharge of his official duties as a Judicial Officer. The adverse CCRs during the years 1984 to 1989 are of minor nature and are not relevant for the purpose of estimating the efficiency of the petitioner as a Judicial Officer. The promotion of the petitioner to O.J.S. Class-I (Junior Branch) and the order of this Court permitting the petitioner to Cross Efficiency Bar have rendered the minor, irrelevant and negligible adverse entries in his CCRs ineffective. The only blot in petitioner’s career was an ignorant order passed by him in relation to the restoration application and the displeasure of this Court expressed on such conduct of the petitioner. During the petitioner’s incumbency in the cadre of O.J.S. Class-I, hardly for four months, there was nothing on record even mildly suggesting of inaptitude or inefficiency or any entry in the Service Book to his discredit or hinting even remotely that he had outlived his utility as a Judicial Officer. The impugned order is not bona fide and is presumed to have been passed on collateral grounds. The impugned order even 3 does not whisper ex facie that the order was passed in public interest and therefore, it is liable to be quashed. The order also does not reveal any reason or ground in support of the purported exercise of power conferred on the opposite parties under Rule 71(a) of the Orissa Service Code. The impugned order affects the livelihood of the petitioner. There has been no periodic review of work of the petitioner. It was submitted that the very basis/requirement of formation of opinion about public interest is lacking and therefore, the impugned order is liable to be quashed. Law is well settled that all such entries made in the CCRs prior to the order of promotion and the order permitting the petitioner to cross Efficiency Bar are not available to be considered for the purpose of giving premature retirement. The impugned order is otherwise bad in law as the same is not bona fide, based on collateral grounds, extraneous consideration and there is no material on record. In support of his contention, he relied upon the judgments of the Hon’ble Supreme Court in the cases of Brij Mohan Singh Chopra vs. State of Punjab, (1987) 2 SCC 188 and State of Gujarat vs. Umedbhai M. Patel, (2001) 3 SCC 314. 4. Per contra, learned Government Advocate placing reliance upon the judgment of the Hon’ble Supreme Court in the case of Pyare Mohan Lal vs. State of Jharkhand and others, (2010) 10 SCC 693 submitted that single adverse entry touching on integrity is enough to impose compulsory retirement. The authorities concerned are justified to consider the entire service record of the petitioner irrespective of the fact that the officer had been promoted earlier in spite of adverse entries in CCRs. The High Court had objectively decided to recommend his 4 compulsory retirement and the State Authorities have acted accordingly. The adverse entries in CCRs are relevant even after promotion. The washed-off theory has no application in context of compulsory retirement. The adverse entries in CCRs always remain part of record for overall consideration even when the employee has been subsequently promoted. 5. On the rival contentions of the parties, the question that falls for consideration by this Court is as to whether in the facts and circumstances of the case the impugned order dated 19.08.1995 (Annexure-7) passed by opposite party No.1 retiring the petitioner compulsorily is sustainable in law. 6. Admittedly in the present case, there are adverse remarks on the CCRs of the petitioner during the years 1985, 1986, 1987 and 1989. Now it is necessary to know what is the nature and gravity of the adverse remarks. According to the petitioner, the CCR entries made in different years are merely to the extent that the petitioner was a peevish and that he should improve his capability of supervision over the staff. Verification of record with regard to some of the remarks made in CCRs reveals as follows: Years/ Period Is he industrious and has he coped effectually with heavy work Knowledge of law and judicial capacity Remarks about his promptness in disposal of cases Remarks about reputation of integrity and impartiality 1981 Industrious and tried to cope effectually with heavy work Average Average Good 1.1.1982 to 3.7.1982 Yes Should read more and improve the quality of his judgment. Disposal good. Good 6.7.1982 to 31.12.1982 He is industrious and capable of effectually dealing with heavy work Good Prompt in disposal of cases. Good 5 1.1.1983 to 31.12.1983 Industrious. Coped with heavy work moderately Average Prompt in disposal of cases. Good 1.1.1984 to 27.6.1984 Industrious and coped with heavy work effectually Good Prompt in disposal of cases. Good 9.7.1984 to 31.12.1984 Yes Average Average Nothing heard against integrity and impartiality 1.1.1985 to 31.12.1985 Not industrious Average Average Nothing adverse 1.1.1986 to 30.4.1986 Yes Knowledge in law to improve He is prompt in disposal of cases Nothing is heard against his reputation and integrity. 25.06.1986 to 10.11.1986 He is industrious Good Takes interest in disposal of cases Nothing is heard 01.01.1987 to 05.05.1987 Yes Good Good Nothing heard adverse 10.06.1987 to 23.11.1987 Not very much Good Not so prompt Unquestionable 1988 up to 20.09.1988 Yes Average Prompt in disposal of cases Average Oct, 1988 to Dec, 1988 He is still to improve. He cannot cope effectually with heavy work He wants little improvement. Slow. Nothing is heard about him 26.09.1988 May cope with heavy work Fair but should improve Fairly prompt Good 1989-90 Should strike more He should improve knowledge in law Nothing heard adverse 1990 He is not industrious. He avoids heavy works. Knowledge of law and judicial capacity not up to the mark He is not so prompt in disposal of cases Nothing is heard against him 15.04.1991 to 13.02.1992 Yes Good Good Good 30.09.1991 to 10.02.1992 Yes Good Good Good 14.02.1992 to 24.07.1992 Yes Good Prompt in disposal of cases His integrity and impartiality is doubtful 01.08.1992 to 31.12.1992 Copes with the work load Needs improvement Prompt Nothing heard against 01.01.1993 Copes with the work Needs improvement Prompt Nothing heard 6 to 16.10.1993 load against 01.01.1994 to 10.07.1994 Average Needs improvement Average Not free from doubt 08.07.1994 to 31.12.1994 Yes Good Good Good 01.01.1995 to 03.04.1995 Yes Good Good Good 7. In the present case, perusal of the entries made in the CCRs of the petitioner reveals that he has been rated as an average officer. In most of the years, more particularly, in 1982, 1989 and 1990, he received adverse comments both on the question of knowledge in law and judicial capacity to the effect that the same was not up to the mark. For the period from 14.02.1992 to 24.07.1992 while he was serving as Additional Munsif, Baliguda, he received adverse remarks with regard to his integrity and impartiality to the effect that the same was doubtful and the general reputation was not good. For the period 01.01.1994 to 10.07.1994 he also received adverse remarks with regard to his integrity and impartiality to the effect that the same was not free from doubt. Needless to say that for effective administration of justice, honest, impartial and law knowing Judicial Officers are required. However, an officer having knowledge in law but without integrity is a great danger to the smooth functioning of the Judiciary. Withholding the integrity of a Government employee is a serious matter. As fire and water don’t agree so also the judiciary and dishonesty cannot join their hands together. 7 8. The Hon’ble Supreme Court in the case of Pyare Mohan Lal (supra) has held as under: “29. The law requires the authority to consider the “entire service record” of the employee while assessing whether he can be given compulsory retirement irrespective of the fact that the adverse entries had not been communicated to him and the officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement. The case of a judicial officer is required to be examined, treating him to be different from other wings of the society, as he is serving the State in a different capacity. The case of a judicial officer is considered by a committee of Judges of the High Court duly constituted by the Hon'ble 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 fides.” 9. In the case of State of U.P. vs. Vijay Kumar Jain, (2002) 3 SCC 641, the Hon’ble Supreme Court held that the vigour or sting of an entry does not get wiped out, particularly, while considering the case of employee for giving him compulsory retirement, as it requires the examination of the entire service record, including character rolls and confidential reports. 10. The Hon’ble Supreme Court in the case of State of Orissa Vs. Ram Chandra Das, (1996) 5 SCC 331 has held as under: “7. … 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 8 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.” 11. The Hon’ble Supreme Court in the case of Baikuntha Nath Das & Anr. V. Chief District Medical Officer, Baripada & Anr, (1992) 2 SCC 299 held as under: “34. The following principles emerge from the above discussion: (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 this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary — in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. (iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter — of course attaching more importance to record of and performance during the later years. The record to be so considered 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. 9 (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.” 12. In view of the above settled legal propositions, various contentions taken by the petitioner merit no consideration. 13. The judgements of the Hon’ble Supreme Court in the cases of Brij Mohan Singh Chopra (supra), wherein no adverse entries awarded within the last five years of service of the petitioner and in Umedbhai M. Patel (supra) where compulsory retirement was given to the petitioner on extraneous consideration are of no help to the petitioner as facts of these two cases are different from the facts of the case at hand. 14. In view of the above, we don’t find any cogent reason to interfere with the impugned order dated 19.08.1995 (Annexure-7). 15. In the result, the writ petition is dismissed. No order as to costs. ………………………….. B.N. Mahapatra, J. V. Gopala Gowda, C.J. I agree. ……………………….. Chief Justice Orissa High Court, Cuttack The 2ND November, 2011/skj/ss/ssd 10