IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.649/2005 Reserved on: 5.11.2008 Decided on:9.1.2009 P.D. Goel. …Petitioner. Versus Hon’ble High Court of Himachal Pradesh. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes. For the petitioner : Mr. R.L. Sood, Senior Advocate with Mr. Sunil Mohan Goel, Advocate. For the Respondent : Ms. Jyotsna Rewal Dua, Advocate. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the petitioner was appointed as Sub Judge on 14.1.1975. He was inducted as Member of the Higher Judiciary on 19.4.1995. He was granted the selection grade on 20.11.2003. He was conveyed adverse entry in the Annual Confidential Report for the year 2003-04 on 30.10.2004. He sought the clarification from the Registrar (Vigilance) on 22.11.2004 whether remarks recorded in column No. 13 were ‘advisory’ or ‘adverse’ in 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2 nature. He was informed by the Registrar (Vigilance) on 1.12.2004 that remark “does not enjoy good general reputation” against column No.13 in Annual Confidential Report for the year 2003-04 was ‘adverse’ and the entry made in column No. 14 ‘average’ was advisory in nature. He sought for the relevant record on the basis of which entry/remark was incorporated in his Annual Confidential Report in order to make the exhaustive and detailed representation on 28.12.2004. The Registrar (Vigilance) of the Registry of the High Court asked the petitioner vide communication dated 4.1.2005 to specify the record which he wanted to inspect. He informed the Registrar (Vigilance) on 12.1.2005 that he had no idea/knowledge about the record on the basis of which the remarks in column No.13 of his Annual Confidential Report were incorporated and, therefore, to enable him to specify the record which he intended to inspect be made available to him on the basis of which entry was made. He was informed by the Registrar (Vigilance) on 5.3.2005 that such adverse entry as it often happens normally came to be recorded on the basis of the perception that the Hon’ble Members of the Full Court might have been having about his functioning and the reputation that he had been enjoying as a Judicial Officer. The text of letter dated 3.5.2005 reads thus: “With reference to your letter dated 12.1.2005 on the captioned subject I have been directed to inform you that upon consideration of the entire matter, the Hon’ble Full Court feels that the adverse entry “Does not enjoy good general reputation” in column No. 13 of your Annual Confidential Report for the year 2003-04 was not specifically relatable to any particular record as such nor it had specific genesis to any particular record of your service. Such an adverse entry as it often happens normally, came to be recorded on the basis of the perception that the Hon’ble Members of the Full Court might have been having about your functioning and the reputation that you had been enjoying as a Judicial Officer.” 3 He made a representation against the adverse entry and the same was rejected and conveyed to him on 29.3.2005. He was retired vide notification dated 20.4.2005. The text of notification 20.4.2005 reads thus: “Hon’ble the Chief Justice and Hon’ble Judges of the High Court of Himachal Pradesh are pleased to order that Shri P.D. Goel, District and Sessions Judge, Chamba (a Member of Himachal Pradesh Judicial Service), shall stand retired from service on and with effect from the afternoon of 31st July, 2005 i.e. last day of the month in which he attains the age of superannuation, that is, 58 years, under Rule 14 of the Himachal Pradesh Judicial Service Rules, 2004.” The petitioner has assailed specifically Annexure P-14 dated 30.10.2004, Annexure P-15 dated 29.3.2005 whereby his representation was rejected and notification dated 20.4.2005 Annexure P-16 vide which he has been retired with effect from 31.7.2005. The principal stand of the petitioner is that adverse entry conveyed to him on 30.10.2004 is based on subjective satisfaction and the same is in contravention of the notification issued by the Registry of the High Court and as per dicta of the Hon’ble Supreme Court. It is also contended in the writ petition that no adverse entry except P-14 dated 30.10.2004 has ever been conveyed to him. He has given the example of three Judicial Officers, namely, Sh. K.C.Negi, Sh. B.D.Sharma and Sh. Inder Ram, who have been permitted to remain in service upto the age 60 years having inferior service record vis-à-vis him. It is also contended that he was entitled to continue upto the age of 60 years on the basis of Rule 14 of the Himachal Pradesh Judicial Service Rules, 2004 notified on 16.3.2004. It is further averred in the petition that the representation has been rejected without assigning any reasons. It is also stated in the petition that the matter could not be decided by the Full Court once the committee was constituted as per directions issued by the Hon’ble Supreme Court. The petitioner has also 4 given reference that the adverse entry has been made in his Annual Confidential Report for the year 2003-04 when he was dealing with the matter pertaining to the Minister of the Himachal Pradesh under the Prevention of Corruption Act. He has relied upon various judgments of the Hon’ble Supreme Court to substantiate his claim. The stand of the respondent is that the decision to retire the petitioner at the age of 58 years is in conformity with Rule 14 of the Himachal Pradesh Judicial Service Rules, 2004. It is also averred in the reply that the entire service record of the petitioner was considered for being continued in service. According to the reply, the petitioner’s past service record, quality of judgments and other relevant matters were taken into consideration while deciding not to grant extension to the petitioner beyond 58 years of age. As far as the recording of the Annual Confidential Report is concerned, the stand of the respondent is that it was the general perception of the Full Court vis-a-vis the reputation of the petitioner during the relevant period and the same is not related to any particular service record of the petitioner. It is also stated in the reply that the reasons for rejection of the representation need not be conveyed to the petitioner and no illegality was committed while rejecting the representation of the petitioner against the adverse entry made in his Annual Confidential Report for the year 2003-04. The stand of the respondent is also that the age of retirement is 58 years and not 60 years. It is further averred in the reply that there was no question of making any recommendations to the Governor as stated in the petition under proviso to rule 14 of the Himachal Pradesh Judicial Service Rules, 2004 and the High Court is required to take the decision in accordance with the requirement of the Rule whether to grant the extension to Judicial Officer or to retire on attaining the age of 58 years and neither any specific order 5 much less to support such order with reasons was required to be communicated in that behalf nor any approval from the Government was required for retiring the petitioner on his attaining the age of 58 years. The respondent has relied upon (2001) 2 SCC 305 in the reply to superannuate the petitioner at the age of 58 years. As far as the grant of selection grade to the petitioner is concerned, the stance of the respondent is that it will not entitle the petitioner to continue beyond the age of 58 years. As far as the representation made by the petitioner is concerned against the notification, whereby he has been retired, the stand of the respondent is that there was no provision under the Himachal Pradesh Judicial Service Rules, 2004 for considering the representation against the decision taken by the Full Court under Rule 14 of the Himachal Pradesh Judicial Service Rules, 2004. However, it was stated that the representation was considered and rejected and the record shall be produced before the Court as and when directed. The petitioner has filed a detailed rejoinder to the reply filed by the respondent. The stand taken in the writ petition is reiterated. The Registrar General of the High Court has also filed the supplementary affidavit verified on 4.1.2008 whereby a reference has been made to the instructions issued from time to time for recording the Annual Confidential Reports for the cadre of District/Additional District and Sessions Judges. In the supplementary affidavit filed by the Registrar General sworn on 11.5.2007, it is stated that the entire record was considered by the Full Court in its meeting held on 12.4.2005. Mr. R.L. Sood, Senior Advocate has strenuously argued that the entries in the Annual Confidential Report cannot be made on the basis of mere perception without any material on record relating to the same. He then contended that any information, which may have led to the recording 6 of Annual Confidential Report was required to be divulged to the petitioner. According to him, the age of superannuation as per rule 14 of Himachal Pradesh Judicial Service Rules, 2004 is 60 years and not 58 years. According to him, the respondent has misconstrued the provisions of rules 14 and 15 of Himachal Pradesh Judicial Service Rules, 2004. He further contended that the notification dated 20.4.2005 was required to be issued by the Governor and not by the Hon’ble Chief Justice. He then contended that the representation made by his client has been rejected without assigning any reason vide Annexure P-15. He further contended that his client has always earned ‘outstanding’ to ‘good’ entries and it was for the first time that he was conveyed adverse entry for the year 2003-04. According to him, his client has always been granted ‘outstanding’ as far as the disposal of the cases is concerned. He lastly contended that the matter was also looked into by the Registrar General after the receipt of the complaint, but nothing substantial was found against his client and his client has been found suitable on the basis of merit for the release of selection grade on 20.12.2003. Ms. Jyotsna Rewal Dua, Advocate appearing on behalf of respondent has submitted that the adverse entry has been conveyed to the petitioner on the basis of perception of the Full Court about the integrity of the petitioner. She also contended that the age of superannuation under rule 14 of Himachal Pradesh Judicial Service Rules, 2004 is 58 years and not 60 years as contended by Mr. R.L. Sood. She then contended that under rule 14 of Himachal Pradesh Judicial Service Rules, 2004, the Hon’ble Chief Justice was competent to issue notification dated 20.4.2005 and neither the State Government nor the Governor has any role to play. She further contended that no reasons are required to be assigned while rejecting the representation made by the petitioner against 7 the adverse entry. She also contended that the record of the petitioner was seen by the Full Court on 12.4.2005. She further contended that it was the prerogative of the Hon’ble Chief Justice whether to continue with the committee of two Hon’ble Judges to review the case of the petitioner or to refer the matter to the Full Court. According to her there was nothing unconstitutional to refer the matter to the Full Court though initially it was referred to the committee of two Hon’ble Judges. The respondent was directed to produce the entire record for the perusal of the Court. The record was made available by the respondent. I have heard the learned counsel for the parties and perused the record carefully. The Court first will advert to the issue pertaining to the Annual Confidential Report for the year 2003-2004. The petitioner was conveyed adverse entry for the year 2003-04 and against column No. 13 ‘general reputation’, “does not enjoy good general reputation” has been mentioned. Against column No.14, net result is ‘average’. He was permitted to make a representation within 60 days. He sought clarification, as noticed above, whether the remarks recorded in column No. 13 were ‘adverse’ or ‘advisory’ in nature. He was informed on 1.12.2004 that the remarks made against column No.13 in his Annual Confidential Report for the year 2003-04 were ‘adverse’ whereas the remarks made against column No.14 were ‘advisory’ in nature. He requested on 28.12.2004 for making him available the record for the purpose of making representation. He was directed by the Registrar (Vigilance) of the High Court to specify on 4.1.2005 the record which he wanted to inspect. He was informed on 5.3.2005 that the ‘adverse’ entry made in column No.13 was not specifically relatable to any particular record as such nor it has specific genesis to any particular record and adverse entry as it often happens 8 normally came to be recorded on the basis of the perception that the Hon’ble Members of the Full Court might have been having about his functioning and the reputation. The text of letter has already been reproduced hereinabove. His representation was rejected on 29.3.2005. The text of letter dated 29.3.2005 reads thus: “Please refer to your representation/letter dated 10.3.2005. I have been directed to say that the representation was considered and has been rejected.” It is evident from the record that the following entries were made in his Annual Confidential Reports with effect from 1989-90 till 24.3.2004: “1. 1989-90 Good (4.12.1989 to 31.3.1990) 2. 1990-91 Very Good 3. 1991-92 Good 4. 1992-93 (22.5.1992 to 12.11.1992) Good (25.11.1992 to 31.3.1993) Good 5. 1993-94 Very Good 6. 1994-95 Outstanding (26.8.1994 to 31.3.1995) 7. 1995-96 Average 8. 1996-97 Good 9. 1997-98 Very Good 10. 1998-99 Very Good 11. 1999-2000 Very Good 12. 2000-2001 (27.7.2000 to 31.3.2001) Good 13. 2001-2002 Good 14. 2002-2003 (1.4.2002 to 28.8.2002) Good (9.9.2002 to 31.3.2003) Good 15. 2003-2004 (1.4.2003 to 24.3.2004) Average.” It is for the first time that the petitioner has been conveyed adverse remarks for the year 2003-04. The moot question involved in this petition is: Whether the adverse entry “does not enjoy good general reputation” 9 could be recorded against column No.13 or not? The case of the petitioner is that these entries could not be made subjectively and there ought to have been some material available on record and he was further required to be confronted with the same. The stand, as noticed above, of the respondent is that these remarks have been recorded on the basis of the perception of the Members of the Full Court vis-à-vis the reputation of the petitioner during the relevant period and not related to any particular service record of the petitioner. The Court is of the firm view that the opinion could only be formed objectively and not subjectively. The petitioner was required to be confronted with the material, if any, available on the record and thereafter only this entry could be incorporated. In fact, the petitioner has tried to obtain the record from respondent No.1 to enable him to file an effective representation against the adverse entry. This request of the petitioner was spurned by the respondent by asking him to specify the record, which he was seeking from the Registry of the High Court. The petitioner has again insisted that the record forming the basis of the opinion may be supplied to him. It was only on 5.3.2005 that he has been informed that it was upon the consideration of the entire matter, the Full Court felt that the adverse entry “does not enjoy good general reputation” in Column No.13 of the Annual Confidential Report for the year 2003-04 was not specifically relatable to any particular record as such nor it had specific genesis to any particular record of his service. Further explanation was that such an adverse entry as it often happens normally, came to be recorded on the basis of the perception that the Hon’ble Members of the Full Court might have been having about his functioning and the reputation he had been enjoying as a Judicial Officer. The explanation given by the Registry of the High Court was subjective and not based on any material available on record. This adverse entry 10 has very far reaching ramifications as far as the career of the petitioner was concerned. He has earned, as noticed above, nine ‘good’ entries with effect from 1989-90 to 2003-04. He has earned one ‘outstanding’ entry and has earned four ‘very good’ entries. He was conveyed ‘average’ entry for the year 1995-96 and it is only thereafter for the year 2003-04 that ‘average’ entry was recorded in his Confidential Report. Their Lordships of the Hon’ble Supreme Court in the following cases have held that as and when the adverse entry is to be conveyed, there must be sufficient foundation for the same and it cannot be based on subjective satisfaction and the person against whom this entry is made must be confronted with material, if available. Their Lordships in State of U.P. versus Yamuna Shanker Misra and another, (1997) 4 SCC 7 have held that the purpose of maintaining confidential report is to enable an employee to improve his performance in public service in accordance with his fundamental duty to strive towards excellence in all spheres of individual and collective activity. Their Lordships have further highlighted that there should be objectivity in writing of Confidential Reports and there is need to write report accurately on the basis of facts and overall assessment. Their Lordships have further held that as far as adverse remarks, conduct, reputation and character are concerned, the assessment regarding, may sometimes, not be based on records but based on knowledge of the officer writing the report, the reporting officer should therefore confront the reported officer with his knowledge before forming an opinion to make adverse remarks so that the reported officer gets opportunity to improve himself or to explain his conduct. Their Lordships have held as under: “It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve 11 excellence. Article 51A(j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidential should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.” However, their Lordships of the Hon’ble Supreme Court in Swatantar Singh versus State of Haryana and others, (1997) 4 SCC 14 have held that adverse remarks regarding integrity and honesty can be 12 based on general reputation of the employee without making reference to specific instances. Their Lordships have held as under: “We find no force in the contention. It is true that in view of the settled legal position, the object of writing the Confidential Reports or Character Roll of a Government Servant and Communication of the adverse remarks is to afford an opportunity to the concerned officer to make amends to his remiss; to reform himself; to mend his conduct and to be disciplined, to do hard work, to bring home his lapse in his integrity and character so that he corrects himself and improves the efficiency in public service. The entries, therefore, require an objective assessment of the work and conduct of a Government servant reflecting as accurately as possible his sagging inefficiency and incompetency. The defects and deficiencies brought home to the officer, are means to the end of correcting himself and to show improvement towards excellence. The confidential report, therefore would contain the assessment of the work, devotion to duty and integrity of the officer concerned. The aforesaid entries indicate and reflect that the Superintendent of Police had assessed the reputation of the officer, his honesty, reliability and general reputation gathered around the officer's performance of the duty and shortfalls in that behalf. It is sad but a bitter reality that corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke. Sometimes, there may not be concrete or material evidence to make it part of the record. It would, therefore, may be impracticable for the reporting officer or the competent controlling officer writing the confidential report to give specific instances of shortfalls, supported be evidence, like the remarks made by the Superintendent of Police. More 13 often the corrupt officer manipulates in such a way and leaves no traceable evidence to be made part of the record for being cited as specific instance. It would, thus, appear that the order does not contain or the officer writing the report could not give particulars of the corrupt activities of the petitioner. He honestly assessed that the petitioner would prove himself efficient officer, provided he controls his temptation for corruption. That would clearly indicate the fallibility of the petitioner, vis-a-vis the alleged acts of corruption. Under these circumstances, it cannot be said that the remarks made in the confidential report are vague without any particulars and, therefore, cannot be sustained. It is seen that the officers made the remarks on the basis of the reputation of the petitioner. It was, therefore, for him to improve his conduct, prove honesty and integrity in future in which even, obviously, the authority would appreciate and made necessary remarks for the subsequent period. The appellate authority duly considered and rejected the contention of the petitioner. Repeated representation could render little service. Rejection, therefore, is neither arbitrary nor illegal.” Their Lordships of the Hon’ble Supreme Court in M.S. Bindra versus Union of India and others, (1998) 7 SCC 310 have held that doubt about integrity should not be entertained merely on surmises. It should be based on preponderance of probability as judged from the standard of a reasonable man. Their Lordships have held as under: “While viewing this case from the next angle for judicial scrutiny i.e. want of evidence or material