IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 11414 of 1995 Date of Decision: 18.11.2011. Naurang Singh Mundra --Petitioner Versus The State of Punjab & others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. HON'BLE MS.JUSTICE RITU BAHRI. Present:- Mr. R.K. Malik, Sr. Advocate with Mr. Rajat Mor, Advocate for the petitioner. Mr. J.S. Puri, Addl. A.G., Punjab. *** PERMOD KOHLI.J (ORAL) Petitioner is aggrieved of order dated 10.4.1995 passed by the Govt. of Punjab for his compulsory retirement in public interest under clause (a) of sub rule 1 of Rule 3 of the Punjab Civil Service (Premature Retirement) Rules, 1975, on the recommendations of the Punjab & Haryana High Court. Brief facts leading to the filing of this petition are noticed hereinafter. Petitioner was appointed as a Sub Judge on 8.6.1972 on being selected by the Punjab Public Service Commission. He was granted selection grade on 22.8.1988. On promotion petitioner was posted as C.J.M at Ferozepur and thereafter as Senior Sub Judge at the same place. Petitioner was communicated adverse remarks for the year 1990-91. A representation filed by him dated 16.9.1991 was dismissed. He filed another representation dated 15.2.1993, the same was also rejected. Petitioner was also communicated adverse remarks in the year 1992 that his CWP No. 11414 of 1995 -2- reputation is not good. He represented against these remarks and the High Court accepted the representation by expunging the remarks as conveyed to him vide Annexure P-12. However, final Gradation Report for the said year was kept as 'B Satisfactory'. Petitioner again represented against the final grading and the same was also rejected vide letter dated 23.7.1994. With a view to assail the order of compulsory retirement petitioner has attempted to make certain allegations against some practising lawyers at Ferozepur, the then superior officers (Addl. Distt. & Sessions Judge & District & Sessions Judge) and also alleged bias against some of the then Hon'ble High Court Judges. However, except one Hon'ble Judge no other person has been impleaded as a party. In so far the respondent no.3 (the then High Court Judge) is concerned, the allegations are that the petitioner decided a case titled as Ripudaman Kaur Vs. Union of India against the plaintiff, who happens to be the relation of the Hon'ble Judge. Judgement of the petitioner was, however, set aside by the appellate court and a Regular Second Appeal also came to be dismissed by the High Court and the judgement of the First Appellate Court has attained finality. Petitioner has also referred to another criminal complaint titled as K.K. Bhandari Vs. Dr. K.J. Bhatia for which he took cognizance, who is also said to be relation of respondent no.3. Petitioner has also made certain averments against some practising Advocates and the clerks of Advocates, who were earlier court employees and on their dismissal from service they had started working as Advocates and Clerks in the courts. None of them are parties to this writ petition. Thus, the bald allegations without providing opportunity to the persons against whom allegations are made cannot be looked into. Even CWP No. 11414 of 1995 -3- though, no formal reply has been filed, however, in reply to one of the misc. applications, the High Court has submitted a detailed reply to the writ petition. A.C.Rs of the entire service rendered by the petitioner have been disclosed. Gradings earned by the petitioner during his service are reproduced hereunder:-. “ Year Remarks 1972-73 B (Average/Satisfactory) 1973-74 B (Average/Satisfactory) 1974-75 B (Average/Satisfactory) 1975-76 B (Average/Satisfactory) 1976-77 B (Average/Satisfactory) 1977-78 B (Average/Satisfactory) 1978-79 B Plus (Good) 1979-80 B Plus (Good) 1980-81 B Plus (Good) 1981-82 B Plus (Good) 1982-83 B Plus (Good) 1983-84 B Plus (Good) 1984-85 B Plus (Good) 1985-86 B Plus (Good) 1986-87 B Plus (Good) 1987-88 B Plus (Good) 1988-89 B Plus (Good) 1989-90 B (Satisfactory) 1990-91 B (Satisfactory) 1991-92 B (Satisfactory) 1992-93 B (Satisfactory) 1993-94 B (Satisfactory)” It is the case of the respondents that petitioner was considered for retention in service at the age of 55 years and looking to the entire service record he has been prematurely retired under clause (a) of sub rule 1 of Rule 3 of the Punjab Civil Service (Premature Retirement) Rules, 1975 in public interest. Communication of the adverse remarks to the petitioner during the period 1990-91 and 1991-92 later expunged is also admitted. We have heard Mr. Malik, learned Senior Advocate appearing for the petitioner and learned counsel appearing for the respondents. CWP No. 11414 of 1995 -4- Compulsory retirement is governed and regulated by the statutory rules namely the Punjab Civil Service (Premature Retirement) Rules, 1975 as notified vide notification dated 28.7.1975. The relevant extract of the rule reads as under:- “3.(1)(a) The appropriate authority shall, if it is the opinion that it is in public interest to do so, have the absolute right, by giving an employee prior notice in writing, to retire that employee on the date on which he completes twenty-five years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice. (b) The period of such notice shall not be less than three months; Provided that where at least three months notice is not given or notice for a period less than three months is given, the employee shall be entitled to claim a sum equivalent to amount of his pay and allowances, at the same rates at which he was drawing them immediately before the date of retirement, for a period of three months or, as the case may be, for the period by which such notice falls short of three months.” Apart from the above statutory rules, High Court has issued guidelines to supplement the statutory rules for premature retirement of the Judicial Officers and employees subject to the control of the High Court. Mr. Malik submits that at the relevant time the guidelines issued vide circular dated 20.9.1979 were in vogue. Following guidelines have been issued by the High Court for considering the cases of premature retirement in terms of Rule 3(i) (a):- “(i) The case of every Judicial Officer and employees subject to the control of the High Court shall be reviewed for determining his suitability for retention in service CWP No. 11414 of 1995 -5- 4 months before each of the following dates, namely:- (a) When he is due to complete his qualifying service or to attain the age as may be prescribed by the relevant rules, applicable to him. (b) When he is due to attain the age of 55 years . (ii)(a) The suitability for retention in service at the time of review to be determined in the light of the entire service record, with particular reference to such record pertaining to the preceding 5 years. (b) Any adverse remarks earned by an employee prior to getting promotion to the higher post shall not be taken as a bar in allowing the employee concerned to continue in service beyond the specify age of qualifying service; (c) An employee with a good record of service and whose latest grading is B Plus (Good) or above shall be allowed to continue in service. (iii) Once it is decided to retain a member of the Judicial Service or a member of the Staff in service beyond specified period or qualifying service or the age of 50 or 55 years, as the case may be, he shall ordinarily be allowed to continue till the next review, if due, as envisaged by clause (i) above, unless reports of facts come to notice which reflect adversely upon his integrity, effectiveness, competency or otherwise and consequently render his retention in service not to be in public interest. (iv) No representation by a Judicial Officer employee against the order of compulsory retirement passed against him by the State Govt. on the recommendation of the High Court shall be entertained unless submitted within one month from the date on which the notice of such retirement is served upon him.” Under Rule 3 (i) (a) the employer has an absolute right to retire a public servant in public interest after he completes 25 years of qualifying service or attains 50 years of age by giving three months notice or pay or allowances in lieu thereof. Guidelines referred to above further provide the CWP No. 11414 of 1995 -6- procedure and parameters for exercising the authority to retire a Judicial Officer in public interest. Under these guidelines retention of a member of judicial service at the age of 50 or 55 years is to be considered. While considering the suitability for retention in service his/her entire record of service with particular reference to record pertaining to preceding five years is to be examined. Apart from above adverse remarks earned by an employee are also to be kept in view. Clause (c) of the above mentioned guidelines also require that for retention in service apart from good record of service his latest grading should be 'B Plus Good' or above. The petitioner has been retired on the basis of his service record. From the perusal of the A.C.Rs of the petitioner for the entire period of service from the year 1972-73 to 1993- 94, it appears that he has earned eleven 'B Satisfactory' reports and same number of “B Plus Good” reports. The petitioner had five 'B Satisfactory' reports preceding the passing of the impugned order of compulsory retirement. He also earned adverse reports for the period 1990-91 and representation against the same already stands rejected. Adverse report has attained finality. It may be useful to notice some of the judgements on the issue. In Union of India & others Vs. J.N. Sinha reported as 1971 (1) SCR 791 while considering the validity of an order under fundamental Rule 56 (J), it has been observed by the Hon'ble Supreme Court that an order of compulsory retirement does not involve any severe consequences, the employee retired thereunder does not loose any of the rights acquired by him. It has also been observed that the rule is not intended for taking any penal action against the govt. servant. It has been observed that this rule in CWP No. 11414 of 1995 -7- fact embodies one of the facets of pleasure doctrine embodied in Article 310 of the Constitution and the rule holds balance between rights of the individual govt. servant and the public interest. Considering the purpose of the rule, it has been observed that the rule is intended to enable the govt. to energize its machinery and to make it efficient by compulsorily retiring those who in its opinion should not be there in public interest. This principle was further reiterated in various judgements. In case of Sh.Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another reported as 1992 (2) SCC 299 on consideration of various decisions Hon'ble Supreme Court laid down following principles governing the question of compulsory retirement: “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 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 CWP No. 11414 of 1995 -8- 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. (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. Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 29 to 31 above.” These principles are being consistently followed by Hon'ble Supreme Court till date. In so far the Judicial Service is concerned the Hon'ble Supreme Court had the occasion to consider the nature of service and the parameters to be adopted therefor. In regard to the nature of Judicial Service, Hon'ble Supreme Court in case of Nawal Singh Vs. State of U.P and another reported as 2003(8) SCC 117 held 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 CWP No. 11414 of 1995 -9- Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because the order of compulsory retirement is based on the subjective satisfaction of the authority.” In case of Chandra Singh v. State of Rajasthan reported as 2003(6) SCC 545 while assessing the efficiency of Judicial Service, following observations have been made:- “40. Article 235 of the Constitution of India enables the High Court to assess the performance of any judicial officer at any time with a view to discipline the black sheep or weed out the dead wood. This constitutional power of the High Court cannot be circumscribed by any rule or order... 47. In the instant case, we are dealing with the higher judicial officers. We have already noticed the observations made by the Committee of three Judges. 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.” Considering the purport and object of the compulsory retirement in particular reference to the judicial service Hon'ble Supreme Court finally observed as under:- “6. Further, it is to be reiterated that the object of compulsory retirement is to weed out the dead wood in order to maintain a high standard of efficiency and honesty to keep the judicial service unpolluted. It empowers the authority to retire officers of doubtful integrity which depends upon an overall impression gathered by the higher officers as it is impossible to prove by positive evidence that a particular officer is dishonest.” It has also been contended by Mr. Malik that adverse remarks against the petitioner were not communicated within the time as prescribed CWP No. 11414 of 1995 -10- under the standing guide on A.C.Rs published by the Govt. of Punjab, Department of Personnel and Administrative Reforms which inter alia require that the Annual Confidential Remarks must be recorded immediately after the 31st of March of the reporting year. We are not inclined to accept this contention, firstly because it is not established that these instructions were/or applicable to the Judicial Officers, secondly, mere delay in recording the A.C.Rs does not ipso facto provide a ground for ignoring the same particularly when these A.C.Rs were communicated to the officer concerned and he has represented against the same. As a matter of fact, petitioner never raised any plea for late recording of his A.C.Rs in his representations filed before the High Court at the relevant time. Otherwise also, it is now settled law that even uncommunicated A.C.Rs can be considered for purposes of compulsory retirement as is held by the Hon'ble Supreme Court in case of Union of India v. M.E. Reddy reported as 1979 (2) SLR 792. Relevant observations are as under:- “17. The superior officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact. Some of these remarks may be purely innocuous, or may be connected with general reputation of honesty or integrity that a particular officer enjoys. It will indeed be difficult if not impossible to prove by positive evidence that a particular officer is dishonest but those who has had the opportunity to watch the performance of the said officer in close quarters are in a position to know the nature and character not only on his performance but also of the reputation that he enjoys. “The High Court has also laid great stress on the fact that an adverse entries had not been CWP No. 11414 of 1995 -11- communicated to Reddy, therefore, the order impugned is illegal. We find ourselves unable to agree with the view taken by the High Court or the argument put forward by learned counsel for Reddy... 27. The High Court seemed to rely on certain adverse entries which were taken into consideration when the order of retirement was passed. We have already pointed out relying on the dictum of this Court laid down by Hidayatullah, CJ that the confidential reports can certainly be considered by the appointing authority in passing the order of retirement even if they are not communicated to the officer concerned.” (Emphasis supplied). In case of Pyare Mohan Lal V. State of Jharkhand and others reported as 2010 (10) SCC 693 Hon'ble Supreme Court held that the entire service record of the employee is required to be considered while assessing the question of his compulsory retirement irrespective of the fact that whether adverse entries have been communicated to him and the officer had been promoted earlier inspite of those adverse entries. In Chandra Singh and Nawal Singh's case (supra) it has also been observed by the Hon'ble Supreme Court that once the Committee of Judges has assessed a Judicial Officer and decided to compulsorily retire him the power of judicial review has limited scope. The power of judicial review can only be exercised, if, there are serious allegations of malafide or violation of any rule, though, the employee can always contend that no opinion was formulated by the competent authority to compulsorily retire him. In the instant case, A.C.R. gradings earned by petitioner during his entire service are before us and the decision to retire the petitioner was taken by the High Court on whose recommendations the Governor had compulsorily retired the petitioner. Service record of the petitioner noticed CWP No. 11414 of 1995 -12- herein above clearly indicates that he does fall in the category of dead wood and had earned eleven “B Satisfactory” reports out of which continuously five “B Satisfactory” reports are for five years preceding the passing of the order of compulsory retirement. Even though, the compulsory retirement is on subjective satisfaction but in the present case the instructions dated 20.9.1979 provide for objective consideration to arrive at a subjective satisfaction. The petitioner had more than 50% of his reports less than good. He also earned adverse report for the period 1990-91. His overall service record do not reflect a very rosy picture. It is the opinion of the competent authority in the present case, the High Court to compulsory retire the petitioner. We do not find that the order passed by the competent authority is erroneous in any manner or suffers from any factual or legal infirmity in view of the dictum in Chandra Singh's case (supra). The nature of judicial service is such that it cannot afford to suffer a judicial officer whose integrity is doubtful or has lost the utility for such a service. We find no reason to interfere in the order of compulsory retirement. This petition is devoid of any merit and is hereby dismissed. (PERMOD KOHLI) JUDGE (RITU BAHRI) JUDGE 18 .11.2011. lucky Whether to be Reported? Yes.