HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No : 8252 OF 2007 (S) S. L. Gargava - V/s - State of M.P. & Another Present : Hon’ble Shri Justice Rajendra Menon Hon'ble Shri Justice Alok Aradhe. ---------------------------------------------------------------------------------------- Shri A.S.Jha, learned Sr. Counsel with Shri Uttam Maheshwari, learned counsel for the petitioner. Shri Rajesh Tiwari, learned Government Advocate for Respondent No.1. Shri V.S.Shroti, learned Sr. Counsel with Shri Ashish Shroti, learned counsel for Respo1ndent No.2. ------------------------------------------------------------------------------------------- O R D E R ( 13/10/2011) Per :- Hon'ble Shri Justice Rajendra Menon Challenging the order dated 4.5.2007 passed by the State Government compulsorily retiring the petitioner under Rule 42 (1) (b) of the M.P. Civil Services (Pension) Rules 1976 and Fundamental Rules 56 (2) (A), petitioner has filed this writ petition. 2. Challenge to the order of compulsorily retirement is made mainly on the ground that the petitioner's service record is not so bad that he should be compulsorily retired. Inter-alia contending that the petitioner was never charge-sheeted, no enquiry was conducted against him and there is no complaint with regard to his conduct and integrity, it is stated that the act impugned is unsustainable. 3. From the material available on record and taking note of the submissions made by Shri A.S. Jha, learned Sr. Counsel, it is seen that the petitioner was appointed in Madhya Pradesh Judicial Services Class-II Cadre as a Civil Judge Class-II on 8.8.1990 as is evident from the order Annexure-P2. After completing his training, he was confirmed on the post of Civil Judge Class-II w.e.f. 12.10.1993 vide order Annexure-P3 dated 27.7.1994. 4. It is the case of the petitioner that he was strict with the advocates and the staff and, therefore, they were not happy with him, as a result, the petitioner received certain adverse communications, inspite thereof, petitioner was promoted as a Civil Judge Class-I and Judicial Magistrate First Class vide order dated 29.7.2000 (Annexure-P12). He was further promoted to the post of Additional Chief Judicial Magistrate vide Annexure-P14 dated 6.10.2004 and his services were transferred on deputation as a Dy. Welfare Commissioner, Bhopal Gas Tragedy, Bhopal in the year 2004. While working so, he received communications about his Confidential Report on 9.4.2005 vide Annexure-P15 and as the same was not correct, petitioner represented but the adverse entries were not expunged. Petitioner was thereafter, recalled from his deputation and was posted as Civil Judge Class-I Badwani in the year 2006, when the impugned action was taken. 5. Accordingly, contending that the petitioner has been proceeded against and the action taken only because he was strict with the advocates and the adverse communications were nothing but a result of the 2 advocates being unhappy with him, petitioner seeks interference into the matter. By further contending that before taking the impugned action, no enquiry was conducted, no show cause notice was given and opportunities of hearing were not granted to the petitioner. 6. Respondents have filed the return and from the return filed by the High Court, it is seen that during the entire service period of the petitioner, various adverse entries were communicated to the petitioner, he was graded 'D' for the year ending 31.3.1992 and again he was graded 'D' for the year ending 31.3.1993. Adverse entries in this regard are filed as Annexure-R1. For the year ending 1993-94, the petitioner's performance was taken note of by the District Judge and was graded as 'D' which was approved by the High Court. In the year 1994-95, he was graded 'E', which was maintained by the Hon'ble Chief Justice. Adverse entries were communicated to the petitioner on 25.7.1995 vide Annexure- R2. It is stated that while the petitioner was posted at Ashoknagar, a complaint was made against him by certain members of the Bar, the complaints were looked into and a warning memo was issued to the petitioner and, thereafter, for the year 1995-96 again, he was graded as 'D' by the Hon'ble Chief Justice. His representation against this grading was considered and rejected vide Annexure-R4 dated 4.9.1996 and again for the year 1996-97, the petitioner was graded 'D' by the District Judge, which was approved by the Hon'ble Chief Justice. This communication was made to the petitioner vide Annexure-R5 dated 29.5.1997 and his representation against the same was rejected vide Annexure-R6 dated 24.11.1997. It is stated that again for the year ending 1998, petitioner was graded as 'D', the adverse entry was communicated to him vide Annexure- R7 on 27.4.1998 and his representation was rejected on 24.9.1998 vide 3 Annexure-R8. Respondents have filed CR gradings of the petitioner from the year 1994 upto the year 1998 indicating that they were graded as 'D', it is stated by the respondents that complaints were received against the petitioner for the period from 1.1.2004 to 31.12.2004 with regard to his judicial work. It was indicated that he uses to loose temper and his dealing with the public and members of the Bar was not proper. He was graded 'D' for the period from 1.1.2005 to 31.12.2005 and the same was communicated to him vide memo dated 9.4.1005 (Annexure-R10), his services were also found to be unsatisfactory, he lacked leadership, initiative and quality of management, planning and overall work was not good, his general behaviour was also unsatisfactory. Again for the year ending 2006, he was graded as 'D', his work was below average and the same was communicated to him vide Annexure-R11 dated 24.4.2006 and the Hon'ble Chief Justice again graded him 'E' for the year ending 2007 vide Annexure-R13 and in his report vide Annexure-R14 and report vide Annexure-R15, the District Judge (Vigilance) Indore Zone stated that work of the petitioner was not satisfactory and there are complaints against him. Based on the overall service record of the petitioner, the administrative Committee has recommended for not retaining him in service under fundamental rule 56 (2) (a), this was considered by the Full Court on 22.4.2007 and after going through the entire service record, the Full Court accepted the recommendation of the Administrative Committee No.I as contained in Annexure-R17 and the impugned order of compulsorily retiring the petitioner Annexure-P25 dated 4.5.2007 has been passed in consequence, thereof. 7. Shri V.S.Shroti, learned Sr. Counsel referring to the averments made in the return and material available in the service record of the 4 petitioner, emphasized that for most period as indicated hereinabove, petitioner is graded 'D' and 'E'. There are complaints with regard to his general behaviour and conduct, his relations with the advocates was not proper and after analyzing the entire record as indicated hereinabove, a decision is taken to compulsorily retire the petitioner under Fundamental Rule 56 (2) (a). It is stated by Shri Shroti that the same does not warrant any reconsideration as it is based on due appreciation of the entire service record. 8. Having heard learned counsel for the parties and on a perusal of the records, the statements with regard to service particulars of the petitioner as are detailed hereinabove, it is clear that the service record of the petitioner is not satisfactory. Annexure-R1 onwards are complete service particulars of the petitioner, which includes various adverse communications. Annexure-R16 is the recommendation of the Administrative Committee No.I dated 17.4.2007 and Annexure-R17 is the decision of the Full Court. 9. If the service particulars of the petitioner available on record are scrutinized, it would be seen that right from the year 1991-92, petitioner had been receiving adverse entries, he was graded as 'D' for the period from 1992-93 upto 1997-98 and again for the years 2006 and 2007 That apart, while the petitioner was on deputation as Dy. Welfare Commissioner, Bhopal, due to complaints received against the petitioner, his deputation was curtailed and he was recalled. A departmental enquiry was conducted in the year 1999 even though he was exonerated of the charges. However, the entire service record of the petitioner does not indicate that he was having an unblemished service as canvassed. Apart from the fact that he either received 'D' or below entries for most of the 5 periods, there has been various complaints with regard to his conduct and behaviour with the public and the members of the Bar. 10. Recently, the Supreme Court, in the case of the Pyarelal Vs. State of Jharkhand & ors. 2010 Vol. SCC Page 693 has considered the question of compulsory retirement of a Judicial Officer and after taking note of various judgments in this regard in paragraph 17 & 18, the principle has been crystallized in the following manner :- 17. In M.P. State Coop. Dairy Federation Ltd. Vs. Rajnesh Kumar Jamindar, this Court held that judicial review of an order of compulsory retirement is permissible if the order is perverse or arbitrary, as also where there is non-compliance with statutory duty by statutory authority but the Court should not go into the factual findings. The factors not germane for passing an order of compulsory retirement should not be taken into consideration. The criteria and rules adopted by the employer must be adhered to, to determine whether the employee had become liable for compulsory retirement. An authority discharging a public function must act fairly. 18. Thus, the law on the point can be summarized to the effect that an order of compulsory retirement is not a punishment and it does not imply stigma unless such order is passed to impose a punishment for a proved misconduct, as prescribed in the statutory rules. (See Surender Kumar V. Union of India). The authority must consider and examine the overall effect of the entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said Authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee “rendered himself a liability to the institution”, there is no occasion for the court to interfere in the exercise of its limited power of judicial review. 11. Taking note of all these factors, if the High Court had decided to compulsorily retire the petitioner under Fundamental Rule 56 (2) (a), this Court does not find any ground to interfere into the matter, merely because a show cause notice was not issued or the enquiry was not conducted. In that view of the matter, interference by this Court is not warranted. 6 12. It is well settled principle of law that the compulsory retirement is not a punishment and does not cost any stigma and, therefore, holding an enquiry and giving opportunity of hearing is not needed. Accordingly, the High Court having evaluated the entire service of the petitioner and on being satisfied, the service record of the petitioner is not upto to the mark for retaining him in service after the period stipulated is over, this Court does not find any ground to interfere with this reasonable decision, as nothing is brought to the notice of this Court, on the basis of which, the decision taken can be termed as arbitrary, perverse or illegal, warranting reconsideration. 13. Accordingly, finding no merit on the claim made by the petitioner, the petition is dismissed. (RAJENDRA MENON) (ALOK ARADHE) J U D G E J U D G E nd 7