Reportable IN THE HIGH COURT OF DELHI AT NEW DELHI +WP(C) Nos2157/2002, 1965/2002, 2362/2002 & 2780/2002 Date of Decision: 02.05.2008 #Sh.Rajinder Singh Verma ....Petitioner in WP(C) No.2157/02 Sh.Mahendra Singh Rohilla ....Petitioner in WP(C) No.1965/02 Sh.Purshottam Das Gupta ....Petitioner in WP(C) No.2362/02 Sh.Vijay Kumar Malhotra ....Petitioner in WP(C) No.2780/02 ! Through: Mr.Sanjay Parikh with Mr.Vishal Verma for the petitioner in WP(C) No.2157/02. Mr.V. Shekhar, Senior Advocate with Mr.S. Ganesh, Mr.Durgesh Nandini, Mr.P.K.Dubey Mr.Zangpo Sherpa and Mr.Abhigya for the petitioner in WP(C) Nos. 1965/02 & 2780/02. Mr.G.D. Gupta, Senior Advocate with Mr.S.K. Sinha for the petitioner in WP(C) No.2362/02. Versus $The Lt. Governor (Administrator) NCT of Delhi and Ors. .....Respondents ^ Through Ms.Avnish Ahlawat with Ms.Latika Chaudhary for the respondent No.1/NCT of Delhi. Mr.Viraj R. Datar for the respondent No.2/DHC. CORAM :- *THE HON'BLE MR.JUSTICE A.K.SIKRI THE HON'BLE MS. JUSTICE ARUNA SURESH WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 1 of 53 1.Whether Reporters of Local papers may be allowed to see the Judgment? 2.To be referred to the Reporter or not? 3.Whether the judgment should be reported in the Digest? A.K. SIKRI, J. : 1.These are four petitions filed by four petitioners, who were the members of Delhi Higher Judicial Service (in short the 'DHJS'). All of them have been compulsorily retired from service invoking the provisions of Rule 56(j) of the Fundamental Rules, albeit on different dates. All have challenged orders of their compulsory retirement from service. Though result of each case would depend on its own facts, in view of commonality of submissions on legal aspects, we bunched these cases and heard together, one after the other and therefore, propose to deal with them by this common judgment for the sake of avoiding repetitiveness of legal principles. However, we propose to consider each case on its own merits. With these introductory remarks, we start with the first writ petition. WP(C) No.2157/2002 2.Shri Rajinder Singh Verma, who is the petitioner in this petition, started legal practice, after completing his graduation in Law, in the year 1980 after enrolling himself as an advocate. In the WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 2 of 53 year 1994, when applications were invited from practicing advocates for direct recruitment to the DHJS, the petitioner also applied. After his interview, he was selected and was offered appointment to DHJS. He joined the service on 9.3.1995 and was 45 years of age at that time. First posting of the petitioner as Additional Sessions Judge was at Karkardooma Courts, Shahdara, Delhi. With effect from 1.4.1999, he was given charge of a Sessions Court in Tis Hazari. By the year 2000, he had rendered five years of service. He was also attaining the age of 50 years in that year. Rule 56(j) of the Fundamental Rules provides for premature retirement in public interest on attaining the age of 50/55 years. 3.Rule 56(j) of the Fundamental Rules, Sub-Rule (3) of Rule 16 of All-India Service (Death-cum-Retirement Benefits) Rules, 1958 and Rule 27 of the Delhi Higher Judicial Service Rules which are relevant for this purpose read as under:- "FR-56(j) 56(j) Notwithstanding anything contained in this rule, the Appropriate Authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three month's pay and allowances in lieu of such notice: WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 3 of 53 (i) If he is, in Group 'A' or Group 'B' service or post in a substantive, quasi- permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years; (ii) in any other case after he has attained the age of fifty-five years; Sub-Rule (3) of Rule 16 of the All India Service (Death cum Retirement) Benefits Rules, 1958 16(3) The Central Government may, in consultation with the State Government concerned and after giving a member of the Service at least three months previous notice in writing, or three months’ pay and allowances in lieu of such notice require that member to retire in public interest from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice. Rule 27 of the Delhi Higher Judicial Service Rules, 1970 27. A member of the service may be required to work as a Subordinate Judge or as Judicial Magistrate or as Subordinate-Judge- cum-Judicial Magistrate. Explanation – For the purpose of this rule the expression “Subordinate Judge” includes the Senior Subordinate Judge and Additional Senior Subordinate Judge, the Judge Small Cause Court and the Additional Judge Small Cause Court. The expression “Judicial Magistrate” includes the Chief Judicial Magistrate and the Additional Chief Judicial Magistrate." WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 4 of 53 4.Under the aforesaid Rules, case of the petitioner was reviewed by a Committee of two Judges of this Court in July, 2000 but was deferred. 5.Vide orders dated 7.12.2000 served upon the petitioner on 8.12.2000, judicial work entrusted to the petitioner was withdrawn from him with immediate effect. He was made in- charge of all the record rooms in Tis Hazari Courts, Delhi. Thus, he was assigned only the administrative work. On 8.1.2001, the petitioner received a communication dated 5.1.2001 along with letter dated 3.1.2001 of the High Court intimating that he had been given 'C' remarks for the years 1997, 1998 and 1999. He sent his representation against the aforesaid entries stating that there was no material proof/shortcomings, which were pointed out to him. This representation was still pending consideration. In the meantime, the Screening Committee, which met on 21.9.2001 to consider the case of the petitioner along with some other Officers for premature retirement under Rule 56(j recommended that he be prematurely retired. On the same day, his ACR for the year 2000 was recorded as “C Integrity Doubtful”. Full Court meeting held on the following day, i.e. 22.9.2001 accepted the recommendation of the WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 5 of 53 Screening Committee as a result whereof, vide order dated 24.9.2001 sent to him by the Registrar (Vigilance), all judicial works and other works were withdrawn from him. It was followed by order of retirement dated 27.9.2001 retiring him compulsorily from service. In the meantime, he was also informed vide letter dated 21.9.2001 about his ACR for the year 2000. 6.The representation of the petitioner against the ACRs for the years 1997, 1998 and 1999 was considered and rejected on 8.10.2001. The petitioner made representation against his ACR for the year 2000 on 13.10.2001, which was also rejected on 30.11.2001. 7.In this factual background, the petitioner has filed the writ petition with the following prayers:- i. Issue a Writ of Certiorari for calling of the Respondents and their records; ii. Declare that Delhi Higher Judicial Service Rules, 1970 in so far as it is regulated by reference to Rule 16 of All India Services (Death-cum-Retirement Benefits) Rules, 1958 read with Rule 27 of the Delhi Higher Judicial Service Rules, 1970, in the absence of any Rules or Instructions regarding the recording of Confidential Reports of Officers of Delhi Higher Judicial Services, is ultra vires of Articles 14, 16, 21 and 311 of the Constitution of India; iii.Declare the order dated 27th September 2001 of the Respondent No.1 whereby the Petitioner was WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 6 of 53 compulsorily retired under the aforesaid Rule, as innocuous, illegal and mala fide as it is in fact an order of termination of service under the garb of compulsorily retiring the Petitioner in alleged public interest; iv.To issue a Writ of Mandamus directing the Respondents to reinstate the Petitioner to his office and position in the Delhi Higher Judicial Service with continuity in service and with all consequential benefits. v. To quash the order/adverse entry dated 3.1.2001 of the respondent No.2 whereby Remark “C” was recorded at one go about the judicial work and conduct of the petitioner for the years 1997, 1998 and 1999 as arbitrary, illegal and passed on non- existing material. vi.To quash order/entry dated 21.9.2001 of the respondent No.2 whereby Remark “C” Integrity Doubtful was recorded for the judicial work and conduct of the petitioner for the year 2000 it being mala fide and not supported by any material.” 8.The aforesaid prayers made by the petitioner in the writ petition are predicated on the following submissions:- 1) ACRs for the year 1997, 1998 and 1999 were not recorded as and when they fell due. They were all recorded in one go on 3.1.2001 and were served upon the petitioner on 8.1.2001. It is also submitted that since the ACRs were not recorded or communicated to the petitioner for the years 1997 1998 and 1999 when they fell due and, therefore, he WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 7 of 53 has good reason to believe that nothing adverse was found against his judicial work and conduct. 2) There was no inspection by the Hon'ble Inspecting Judge for the years 1997, 1998, 1999 and 2000. The Inspection for the relevant year 1997 was done in the year 1998 which cannot be said to be inspection for the relevant year in accordance with law. In fact, there was no inspection even for the years 1995 and 1996. 3) In July 2000, when the Screening Committee of two Hon'ble Judges had reviewed the case of various officers of DHJS including the Petitioner for premature retirement in public interest, no such recommendation was made. 4) There was no material to retire the petitioner prematurely. Even in reply to grounds at page 103 of the Paper Book, the respondent No.2 admitted that it was done not because of complaints but on “the bona fide impression and opinion formed by the High Court.” 5) Adverse entry for the year 2000 was given on 25.9.2001 (vide letter dated 21.9.2001) from the WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 8 of 53 Registrar, Vigilance, the date when the Screening Committee took a decision to retire the petitioner prematurely. This was accepted by Full Court in its meeting held on 22.9.2001 and the order of retirement dated 27.9.2001 was communicated to the petitioner on 28.9.2001 thereby depriving him from making any meaningful representation. His representation against the entries for the years 1997, 1998 and 1999 was rejected vide letter dated 5.10.2001 (received on 8.10.2001) and his representation dated 13.10.2001 against the entry for the year 2000 was decided on 5th April, 2002 after filing the Writ Petition. 6) Moreover, decision was taken to prematurely retire him by the Full Court on 22.9.2001 without giving him opportunity to make representation against the ACR of the year 2000 inasmuch as on 21.9.2001, while recording his ACR, he was allowed six weeks' time to make a representation. But before he could make such representation, on the very next day, i.e. 22.9.2001 the decision to retire him was taken WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 9 of 53 7) According to the petitioner, in these circumstances, the order becomes punitive, arbitrary, mala fide and is in violation of principles of natural justice. It is also submitted that ACRs are based on surmises and against the advice of the Supreme Court given time and again that rumour mongering is to be avoided at all costs as it seriously jeopardises efficient working of the Subordinate Courts. The object of retirement of the public servant in public interest is to chop the deadwood and inefficient persons in government service. 9.The petitioner, therefore, argues that since there is no material on the basis of which the impugned ACRs could be recorded or order of compulsory retirement could be passed, if the veil is lifted, the nature of the impugned order would be apparent. In support of the aforesaid submission, learned counsel for the petitioner, at the time of arguments, placed reliance on a number of judgments. Since these very judgments are cited by the other petitioners in their petitions, we take note of all these judgments at this stage itself. (i) Baikuntnath Das Vs. Chief District Medical Officer, WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 10 of 53 (1992) 2 SCC 299. In this judgment the Supreme made the following observations:- "31. Another factor to be borne in mind is this: most often, the authority which made the adverse remarks and the authority competent to retire him compulsorily are not the same. There is no reason to presume that the authority competent to retire him will not act bona fide or will not consider the entire record dispassionately. As the decided cases show, very often, a Review Committee consisting of more than one responsible official is constituted to examine the cases and make their recommendation to the government. The Review Committee, or the government, would not naturally be swayed by one or two remarks, favourable or adverse. They would form an opinion on a totality of consideration of the entire record – including representations, if any, made by the government servant against the above remarks – of course attaching more importance to later period of his service. Another circumstance to be borne in mind is the unlikelihood of succession of officers making unfounded remarks against a government servant. 32. .....It is unlikely that adverse remarks over a number of years remain ucommunicated and yet they are made the primary basis of action. Such an unlikely situation, if indeed present, may be indicative of malice in law. We may mention in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action.” (ii) Madan Mohan Chowdhary Vs. State of Bihar, (1999) 3 WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 11 of 53 SCC 396. Relying on this judgment it was argued that in the absence of material, order of compulsory retirement would be bad in law as no reasonable man would reach such a conclusion. In that case, the entries for 3 years were communicated in one go so the order of compulsory retirement was found to be arbitrary and was quashed. It was also held in this case that it is unlikely that adverse remarks over a number of years remained uncommunicated and yet they are made the primary basis of action; in such an unlikely situation, if indeed present, may be indicative of malice in law and the remedy provided under Article 226 of the Constitution is an effective check against mala fide, perverse or arbitrary action even with its well known constraints. (iii) High Court of Punjab & Haryana Vs. I.C. Jain, (1994) 4 SCC 579. This judgment which deals with the need and mode of inspection of the work of judicial officers and writing of their ACRs. In this case, it was observed that inspection helps in pointing out mistakes which can be avoided and deficiencies can be removed. Remarks recorded by the Inspecting Judge are normally endorsed by the Full Court and become the part of ACRs and are WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 12 of 53 foundations on which the career of a Judicial Officer is made or marred so it has to be both effective and productive. The order of compulsory retirement was quashed on the basis of principle (iii) laid down in Baikuntanath Das case (supra). The emphasis has been laid on as to how inspection should be done emphasising that proper uniform system of inspection of subordinate courts should be advised by the High Courts. iv) High Court of Judicature at Allahabad Vs. Sarnam Singh & Anr., (2000) 2 SCC 339. The Court emphasised the duties of the Inspecting Judge and for that purpose relied on the I.C. Jain's and Rajaiah's cases and held that the Inspecting Judge should objectively consider the work and conduct of judicial officers who sometimes have to work under difficult and trying circumstances and also held in this case that the Adverse Remarks suffered from inconsistency and lack of bona fides and the appeal filed by Allahabad high Court was dismissed. v) Bishwanath Prasad Singh Vs. State of Bihar, (2001) 2 SCC 305. In this case, there was no inspection from May 1989 to January 1996 and even no timely entry was made in the Confidential Rolls between 1997-2000 and no WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 13 of 53 regular periodical inspections were carried out. The Court relied upon the judgment in Baikuntanath Das case, Sarnam Singh's case, R. Rajaiah's case and directed as to how the service reports of judicial officers should be dealt with. In para 34, it was observed that entires in the confidential records should be made soon following the end of the period under review, generally within three months from the end of the year and that the delay in carrying out the inspection or making entries frustrates the very purpose sought to be achieved. The Court further pointed out the adverse consequences emerging if the entries are not written time and promptly. vi) State of U.P. Vs. Yamuna Shankar, (1997) 4 SCC 7. It was held in this case that object of writing confidential reports is to give an opportunity to a public servant to improve excellence. It is only after the opportunity is given and still he fails to improve, that adverse remarks can be made against him. vii) The Registrar, High Court of Madras Vs. R. Rajaiah, (1988) 3 SCC 211. It was held in this case that it is true that High Court in its administrative jurisdiction has power to compulsorily retire a Member of the Judicial Service but WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 14 of 53 the conclusion that a Member of Subordinate Judicial Service should be compulsorily retired must be based on materials and if there be no material to justify the conclusion, in that case, it will be an arbitrary exercise of power by the High Court. (Para 21). viii)M.S. Bindra Vs. Union of India & Ors., (1998) 7 SCC 310. This judgment holds that the want of materials cannot justify the conclusion. The Court observed that the judicial officer cannot be condemned of "doubtful integrity” on mere hunch; the doubt should be of such a nature which reasonably and consciously entertainable by a reasonable person on the given material and only then there is justification to ram an officer with the label "Doubtful Integrity" and that no one becomes dishonest all of a sudden. ix) Ram Ekbal Sharma Vs. State of Bihar & Anr., (1990) 3 SCC 504: Anup Jaiswal Vs. Govt. of India: (1984) 2 SCC 369. In these judgments, it has been held that where the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service/where the form of order is merely a WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 15 of 53 camouflage, it is always open to the Court to lift the veil to ascertain the true character of the order. x) Padam Singh Vs. Union of India & Ors., 2000 (III) AD (Delhi) 430 (DB). This Court decided a similar case where adverse entry of "Doubtful Integrity" was given against another member of the DHJS in the absence of any complaint. This Court relying upon M.S. Bindra's case (supra) held that the lack of material clearly points at the situation that no reasonable man would reach to such a conclusion on the given material. 10.These are, in nutshell, the submission of the petitioner on factual and legal aspects. The respondent No.1, namely, the Lt. Governor (Administrator, Govt. of NCT of Delhi) and the respondent No.2, namely, the High Court of Delhi, have filed their separate counter affidavits opposing the writ petition. It is, inter alia, explained in the affidavit of the High Court that the petitioner's date of birth is 13.4.1950 and as such on 21.9.2001, he was 51 years of age. The case of the petitioner was, therefore, reviewed by the Committee on 21.9.2001 and the Committee recommended that he be compulsorily retired keeping in view his over all record and performance, which was WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 16 of 53 accepted by the Full Court on 22.9.2001. It is stated that such decision was just and reasonable having regard to the ACRs of the petitioner. In the counter affidavit the respondent No.2 has explained the circumstances in which ACRs for the years 1997, 1998 and 1999 were recorded in one go to which we shall advert to afterwards. 11.We had summoned the record wherein the case of the petitioner for his compulsory retirement was considered. We also summoned the records of his ACR. These records have been perused by us. 12.In so far as the exercise done in July 2000 is concerned, the case of the petitioner was at that time deferred as ACRs for the years 1997, 1998 and 1999 were not available. Therefore, the petitioner is not right when he contends that he was allowed to continue in July 2000 and one year thereafter, i.e. September 2001, a decision was taken to compulsorily retire him from service. In fact, there was no consideration on merits before 21.9.2001. 13.The petitioner was appointed in the year 1995 and, therefore, as on 21.9.2001 his ACRs for six years, i.e. From 1995 to 2000 were available at that time. The grading given to him for these years is as follows:- WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 17 of 53 "Year Grading 1995 'B' (Average) 1996 'B' (Average) 1997 'C' (Below Average) 1998 'C' (Below Average) 1999 'C' (Below Average) 2000 'C'(Integrity Doubtful)" 14.The report dated 21.9.2001 of the Screening Committee further reveals that the Screening Committee considered the entire record on work and conduct of the petitioner and found that thoughout his career he had been assessed and graded as either “B” or “C “C Integrity Doubtful”. The Screening Committee also found following further material from record:- (a) For the year 1998, the Inspecting Judge of the petitioner had endorsed a remark that the judgments and orders written by him were just average. (b) The Inspecting Judges for the years 1996 to 2000, i.e. in the ACRs for the said five years, did not record any remarks concerning his judicial reputation for honesty and impartiality. Moreover, under the column 'Net Result', the Inspecting Judges had observed that remarks be recorded by the Full Court. (c) Judicial work was withdrawn from the petitioner with effect from 8.12.2000 upon a recommendation of a WP(C) Nos2157/02, 1965/02, 2362/02 & 2780/02 Pg. 18 of 53 Committee of Judges in its report dated 6.12.2000. (d) Pursuant to the decision taken by Full Court in its meeting held on 21.4.2001, referring the matter to a Committee of Judges to make inquiries into his work and conduct, the Committee had submitted its report dated 8.9.2001 in which it was observed and recorded that the petitioner did not enjoy good reputation and integrity. 15.The mere glance at the aforesaid ACRs and other record, as noted above, is so glaring that on the basis thereof the decision to compulsorily retire the petitioner would clearly be without blemish and is to be treated as well-founded. In Baikuntnath Das (supra), the Supreme Court had occasion to explain the genesis of compulsory retirement of a Government employee under the provisions of Rule 56(j) of the FR. After screening through and analysing the case law on the subject and its detailed discussion on various aspects, the Supreme Court culled out the following principles in para 34 of the judgment:- “34. The following principles emerge from the above discussion: (i) An order of compulsory retirement is not a punishment. It implies no stigma