IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 37 of 2010 (S/B) Mithilesh Jha. .……… Petitioner Versus High Court of Uttarakhand & others. ………. Respondents Mr. A.S. Rawat, Senior Advocate, with Mr. Raveendra Singh Bisht, Advocate for the petitioner. Mr. S.K. Jain, Advocate for respondent No. 1. Mr. K.P. Upadhyaya, Addl. Chief Standing Counsel for the State of Uttarakhand / respondent No. 2. Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Dated: 26th September, 2011 BARIN GHOSH, C. J. In this writ petition, petitioner, a Judicial Officer holding the post of Civil Judge (Junior Division), is challenging the adverse Annual Confidential Report dated 30th April, 2008, recorded by the learned District Judge, Udham Singh Nagar, and also the order dated 6th June, 2009 passed by the then Administrative Judge accepting the said Annual Confidential Report. Petitioner is also seeking grant of first A.C.P. and also promotion to the higher cadre of Civil Judge (Senior Division) with effect from the date when his juniors were promoted. 2. Response by the petitioner to an advertisement, published by Uttarakhand Public Service Commission in the year 2002, resulted in selection and appointment of the petitioner as a Civil Judge (Junior Division) in the month of September, 2003. For the year 2003-2004, petitioner was adjudged as a Good Officer by Sri R.M. Bajpai, the then District Judge, Udham Singh Nagar, Rudrapur. The same was accepted by Justice Irshad Hussain, the then Administrative Judge, Eastern Zone. For the year 2004-2005, petitioner was adjudged as a Good Officer by Sri R.D. Pandey, the then District Judge, Chamoli, and the same was accepted by Justice M.M. Ghildiyal, the then Administrative Judge, Western Zone. For the period 1st April, 2005 to 31st March, 2006, petitioner was adjudged as a Good Officer by Sri R.C. Kukreti, 2 the then District Judge, Chamoli, and the same was accepted by Justice B.S. Verma, the then Administrative Judge, Chamoli. For the period 1st April, 2006 to 31st March, 2007, petitioner was adjudged as a Good Officer by Sri R.C. Kukreti, the then District Judge, Chamoli, and the same was accepted by Justice B.S. Verma, the then Administrative Judge, Chamoli. For the year 2007-2008, Sri R.D. Pandey, the then District Judge, Udham Singh Nagar, adjudged the petitioner as a Poor Officer and, at the same time, recorded adverse remarks against him. Justice J.C.S. Rawat, the then Administrative Judge, Udham Singh Nagar, accepted the assessment of the petitioner as a Poor Officer and also agreed with the adverse remarks given by the District Judge. For the year 2008-2009, when the petitioner worked from 15th August, 2008 to 31st March, 2009 as Civil Judge (Junior Division), Bageshwar, and worked during the period 1st April, 2008 to 14th August, 2008 as Civil Judge (Junior Division), Khatima; Sri Jai Deo Singh, the then District Judge, Bageshwar, assessed the petitioner as a Fair Officer and the same was accepted by Justice Dharam Veer, the then Administrative Judge, Bageshwar. 3. As would be evidenced from the Annual Confidential Report for the year 2007-2008, petitioner was posted as Civil Judge (Junior Division), Khatima, for the period from 12th September, 2007 to 31st March, 2008. In the said report, the following adverse remarks were recorded: a. There were several oral complaints by Advocates about the integrity of the Officer, integrity is doubtful. b. The Officer is not fair and impartial and there were oral and written complaints against the Officer. c. Private character of the Officer is very low in the estimation of public and Bar. d. Judgments are not based on sound reasons. e. Petitioner is not amenable to the advice of the District Judge. He has a tendency to ignore the advice or orders of District Judge. 4. The adverse remarks, mentioned against (b) to (e) above, were supported by remarks given separately. In those, it was indicated as under: 3 (a) Petitioner used to freely dine and reside with litigants. A complaint was made by one Sita Ram of Charuwata of Khatima. On this complaint, petitioner was asked to submit his comments and he submitted his explanation and admitted that he is residing in the Guest House of Eastern India Company, Khatima, while 12 cases of Eastern India Company were pending in his court. Thus, it cast aspersion to the integrity and impartiality of the petitioner. (b) While deciding Criminal Revision No. 147 of 2007, Civil Revision No. 11 of 2008 and Civil Revision No. 2 of 2008, by the reporting officer, it was found that the judgments are not based on facts and sound reasons. For example: (i) In Civil Suit No. 1 of 2007, Pratap Singh vs. Omprakash, plaintiff moved an application under Order 8 Rule 10 C.P.C. on 14.09.2007, but this application was not disposed of till 18.12.2007 and, on 18.12.2007, defendant filed his written statement, which was admitted without any cogent reason and the application of the plaintiff under Order 8 Rule 10 C.P.C. remained undisposed of. (ii) In another Civil Suit No. 65 of 2003, Dr. Darshan Singh vs. B.S.N.L., the case was proceeded ex parte against the defendant on the ground that legal representative of the defendant was not present in court, although the Advocate of the defendant, having authority to represent the defendant, was very much present in court on that date. (iii) In Case Crime No. 2331 of 2007, State vs. Kamaljeet Singh, u/s 363, 366, 376 I.P.C., custody of an abducted minor girl, aged 14 years as determined by the petitioner in his order, was not given to her parents, but, in utter violation of law, the custody of the minor was given to a third person, who is so called Mama. (c) Petitioner is arrogant and mischievous and always creates problems for the District Judge. He used abusive language for District Judge in open Dais. For example, petitioner applied for station leave with joining leave from 16.12.2007 to 01.01.2008 (16.12.2007 Sunday, 17.12.2007 4 Joining Leave and 18.12.2007 to 21.12.2007 Special Leave). This application was rejected on the ground that the petitioner was deputed in remand duty and no alternative arrangement for remand duty has been made or suggested by him. After that, petitioner moved another application for leave on 14.12.2007 with false statement that Ms. Anju Shree Juyal would perform remand duty on his behalf; whereas Ms. Anju Shree Juyal has informed in writing that she will not be able to perform remand duty at Khatima. Hence, this application of the petitioner was also rejected. On this rejection, petitioner reacted and moved transfer application for his transfer to any other district. The language of the application show how arrogant the petitioner is. Not only this, petitioner made a complaint of District Judge on 17.12.2007 on false allegations that he was not granted Casual Leave on 23.11.2007 during the death of his nephew, whereas the petitioner had applied for Casual Leave for 25.11.2007 and 26.11.2007 on 24.11.2007. This application was received at the Administrative Office on 27.11.2007 and it was allowed on the very day and the petitioner was permitted to leave station as prayed for. In his transfer application, moved from Dehradun to the Hon’ble Court, petitioner has also asked some questions and clarifications from the Hon’ble Court. It makes crystal clear that what conduct and nature possesses the petitioner. 5. In the said Annual Confidential Report, it was indicated that control of the petitioner over file; in the matter of proper fixation of cause list is Satisfactory, avoidance of unnecessary adjournments is Proper, disposal of old cases is Satisfactory, progress and disposal of execution cases is Satisfactory, interim orders, injunctions are granted, refused or retained for sufficient reasons and cases being remanded on substantial grounds is not applicable. It was also indicated that control of the petitioner over the office and administrative capacity is satisfactory, relation with member of the Bar is satisfactory, and behaviour with brother officers is also satisfactory. It was further indicated that the petitioner has made regular inspections of his court and the offices in his charge during the year and he is punctual in sitting at the court. Justice J.C.S. Rawat, the then Administrative Judge, in his comments, 5 recorded that disposal by the petitioner is 153.84% above the prescribed standard; petitioner has done both civil and criminal work; judgments on facts and law are not well reasoned; and, with that, agreed with the report and the remarks given by the District Judge. Justice J.C.S. Rawat, the then Administrative Judge, also recorded that the petitioner does not enjoy good reputation, which a Judicial Officer is expected to have. While agreeing with the report and the remarks, no independent endeavour was, however, made. 6. A copy of the said Annual Confidential Report was served upon the petitioner. Petitioner gave a representation against the said Annual Confidential Report on 26th May, 2008. In that, he indicated, amongst others, that before joining the service, he served Indian Air Force and, there, he was lastly assessed in regard to his character and performance as Exemplary, the highest assessment usually awarded. He indicated that he worked under six District Judges, including Sri R.D. Pandey, and worked to their satisfaction. He also stated that Sri R.D. Pandey found the petitioner’s work Satisfactory in the years 2004-2005 and 2005-2006, when the petitioner was working in district Chamoli. He stated that, during the year 2007-2008, he worked under the District Judges at Dehradun and Udham Singh Nagar and none of them reported anything against him. He indicated that, from district Chamoli, he got his posting to Rishikesh on his personal request to look after the educational needs of his children studying in 8th, 10th and 12th classes; but, within three months, he was shifted to Khatima. He stated that some interested person mis- communicated to Sri R.D. Pandey that he used abusive language against him in the open dais and that made Sri R.D. Pandey averse to him. He contended that on 13th November, 2007, he made a request for transfer from the judgeship and, while doing so, expressed his pain and suffering at the hands of Sri R.D. Pandey and that made Sri R.D. Pandey to write the said adverse Annual Confidential Report. He stated that he handed over charge at Rishikesh on 11th September, 2007 and, on that date, cases of P.S. Sitarganj were transferred for the first time to Special Judicial Magistrate, Khatima. On 10th January, 2008, jurisdiction of P.S. Nanakmatta was transferred for the first time to Special Judicial Magistrate, Khatima, and, thereafter, cases under Section 138 of Negotiable Instruments Act were transferred to Special Judicial Magistrate, 6 Khatima. On 23rd January, 2008, Orderly of his court was transferred. On 31st January, 2008, Civil Suit Clerk was transferred from his court. Prior thereto, on 6th October, 2007, a show-cause notice was served on him on the issue relating to Eastern India Company. Leave applications dated 22nd November, 2007; 4th December, 2007; 12th December, 2007; and 14th December, 2007 were rejected. On 30th December, 2007, Civil Suit No. 101 of 2000, Tej Singh vs. Anand Singh, was transferred on the day of judgment. Sri K.D. Bhatt was one of the counsel in connection with the said suit. On 24th April, 2007, Civil Suit No. 10 of 2002, Suresh Kumar vs. Rajendra Prasad, was transferred. On 18th December, 2007, Civil Suit Nos. 125 of 1997, 131 of 1997 and 65 of 2003 were transferred. On 2nd April, 2008, Civil Suit No. 56 of 2001 was transferred and, on 5th April, 2008, Civil Suit No. 39 of 2007 was transferred. Sri R.D. Pandey was not in talking terms with him. Correspondence to him, from the end of Sri R.D. Pandey, used to be signed by Nazir or SAO of the district court. The complaints, allegedly received, were not verified. There has not been a single complaint by Advocates about the integrity of the petitioner. At no point of time, any of his supervising officers opined about his private character as very low in the estimation of the public and Bar. The relation and reputation that he enjoyed with the Bar, and in turn with the public, has been certified. He was never cautioned on account of unreasoned judgments. He stated that the application under Order 8 Rule 10 of C.P.C. in Civil Suit No. 1 of 2007 was disposed of on 18th October, 2007 when, considering the pronouncement of the Apex Court, written statement was accepted on record. On revision, he was asked to dispose of the said application, which he disposed of. In Civil Suit No. 65 of 2003, he passed an order under Order 9 Rule 12 of C.P.C. on 2nd November, 2007 directing the parties to appear in person, while the counsel of the parties were present. B.S.N.L. was defendant and no appearance was caused by any representative of the said defendant without assigning any reasonable cause. Hence, the suit was directed to proceed ex parte against the defendant. In Case Crime No. 2331 of 2007, Km. Mamta was in the custody of her Uncle in terms of an order passed by the learned Special Judicial Magistrate, Khatima. That order was passed in view of the statement recorded by Km. Mamta under Section 164 of Cr.P.C. that she is a major and that she wants to go with her Uncle and Aunt. On 28th September, 2007, three 7 applications were filed in his court. One of them was by the Uncle of Km. Mamta stating that he was not willing to continue the custody of Km. Mamta. Second application was by Km. Mamta requesting her release on the ground that she is a major. The third application was by one Gurdeep Singh, Mama of Km. Mamta, for custody of Km. Mamta. He considered those applications, along with the contention of the parents of Km. Mamta that the age of Km. Mamta is 14 years. There was no written application by the parents to take custody of Km. Mamta. He found that Km. Mamta was ready to go with 60 years’ old Mama and refused to go with her parents in writing. In the circumstances, he passed an order for examination of the age of Km. Mamta by medical expert and, till then, granted her custody to her Uncle, in whose custody, she was already directed to remain. On revision, the case was set back for determination of age. The order, directing custody, was not disturbed. He never ignored any order of Sri R.D. Pandey. He applied for leave on 22nd November, 2007. His niece, aged 18 years, expired on 23rd November, 2007. The same was conveyed to the S.A.O. of Sri R.D. Pandey with a request to convey the same to him. The prayer for leave was allowed on 24th November, 2007 and, in consequence thereof, he was unable to attend the last rite of his niece. On the leave application dated 4th December, 2007, a remark was endorsed to the effect that ‘consent of officer not submitted for remand duty, so not allowed’ and, when he sought consent, the same was rejected stating ‘no ground for grant of leave’. It was incorrect to state that no name of officer was suggested. On the contrary, he had clearly stated that he will make a request to Sri M.C. Gupta, Special Judicial Magistrate, and, during his leave period, he will request S.D.M., Khatima. On 12th April, 2008 and 13th April, 2008, there was a conference, when he applied for station leave also for 14th April, 2008 in order to enable him to stay with his family for a day at Rishikesh, but the same was not permitted and, accordingly, he had to return back on 13th April, 2008. On 10th December, 2008, while he was at Rudrapur for the monthly meeting, he took permission from the concerned Remand Magistrate while sitting with C.J.M., but, on the ground that she cannot go to Khatima for remand duty, he was not permitted to proceed on leave. The letter written by him to the Hon’ble Court was confidential. Copy thereof could not be had by the District Judge. Sita Ram and Pradhan of the village Charuweta stated that no letter of 8 complaint, as highlighted in the adverse Annual Confidential Report, was written. Arrangement for his stay at Eastern India Company Guest House was pre-arranged. He came to know that some litigations of that Company are pending in the court and, accordingly, he vacated the Guest House. Many judicial officers, including the Hon’ble District Judge and his guests, stay at the said Guest House. One of the order passed by the District Judge, pertaining to transfer of a case from his court, on being challenged in the High Court, was declared illegal. He is ready to face every type of inquiry essential to ascertain the truth. He had no intention to hurt the feelings of the District Judge. Still then, he submit an unconditional apology to the District Judge. He prayed for expunging the adverse entry recorded in the Annual Confidential Report for the year 2007-2008. 7. It appears that, when the representation of the petitioner was placed before the Hon’ble Chief Justice on 4th June, 2008, his Lordship directed the Administrative Judge to report. Hon’ble Justice J.C.S. Rawat, the then Administrative Judge, on 2nd June, 2009, reported that the representation submitted by the petitioner deserves to be rejected. It appears that on 3rd June, 2009, the representation of the petitioner as well as the report of the then Administrative Judge were placed before Hon’ble the Chief Justice of this Court and, on 4th June, 2009, the representation was rejected and, accordingly, the petitioner was informed. 8. In the meantime, a complaint was received from Sri Saurabh Ojha and Sri Naresh Chauhan, Advocates, against the petitioner. Those were enquired on 29th May, 2008. In course of inquiry, it transpired that the office bearers and members of the Bar have held out that the petitioner is working in just manner. Lawyers of one chamber are complaining against the petitioner, because earlier the lawyers of that chamber used to get things done from all the Presiding Officers, but now the petitioner is working without being influenced; therefore, complaints are being made against him so that he may be transferred. On the basis of the report, thus, submitted, petitioner was transferred from Khatima. On 8th June, 2009, it was reported to the Hon’ble Chief Justice of this Court that two matters are pending in Full Court regarding judicial orders 9 passed by the petitioner and, apart from that, petitioner has also been awarded adverse remarks for the year 2007-2008 and, therefore, his case for promotion be deferred. Subsequent thereto, on 24th September, 2009, two charge-sheets were issued to the petitioner, pursuant to the Full Court Resolutions dated 22nd August, 2009. Petitioner gave replies to the said charge-sheets. Those were considered by the Full Court on 22nd March, 2010, when the Full Court decided to drop one of the charge-sheets without any comment and dropped the other charge-sheet with the comment that the petitioner be warned to be careful in future. 9. Petitioner filed Writ Petition No. 239 of 2009 (S/B), seeking expunction of the adverse remarks, which was permitted to be withdrawn with liberty to make a representation against the adverse remarks recorded by the Administrative Judge. Petitioner, accordingly, made a representation on 24th November, 2009, which was rejected by an order dated 19th December, 2009. 10. As aforesaid, it will be evident from the remarks given by the Administrative Judge that no independent assessment was made by the Administrative Judge while accepting the report and the remarks given by the District Judge. While considering the representation made by the petitioner, the Administrative Judge had an occasion to take a re-look at the matter. While doing so, he referred to the observation of the District Judge to the effect that there were several oral complaints by the Advocates about the integrity of the petitioner and his integrity is doubtful. He then referred to the written complaint that was enquired into, as stated above, which resulted in the transfer of the petitioner. He, accordingly, held that, therefore, there is no ground to expunge the remark given in that regard. In relation to the character of the petitioner in the estimation of the public and the Bar, as was reported by the District Judge, the Administrative Judge commented that the inquiry conducted found that the petitioner has openly discriminated amongst lawyers and that he was staying in a Guest House of a Company and that Company has many cases pending before him. It was commented that the petitioner favoured a group of lawyers and those can be said to be acts, which lowered him in the estimation of public and the Bar and, accordingly, there is no reason to expunge the 10 remark. As regards the comment of the District Judge that the judgments and orders are not based on sound reasons, it was stated that, since the revisions in respect of the cases referred in the report of the District Judge were allowed, it was judicially held that the orders of the trial court were not legally correct. It was stated that in Civil Suit No. 1 of 2007, written statement was not filed and, accordingly, an application was filed on 14th September, 2007 under Order 8 Rule 10 of C.P.C. It was commented that the said application was not decided on that date and was adjourned till 31st October, 2007 and, thereafter, to 16th November, 2007 and, lastly, to 18th December, 2007. It was stated that on 18th December, 2007, an application was filed seeking permission to file written statement, along with written statement, and that the same was taken on record and it was recorded that, since the written statement is being filed, therefore, application of the plaintiff under Order 8 Rule 10 of the C.P.C. has become infructuous. It was observed that, against that order, civil revision was filed, which was allowed, and when there was an application under Order 8 Rule 10 of the C.P.C. pending, unless the same was decided or unless the application seeking permission to file written statement was allowed, the written statement ought not to have been taken on record. It was observed that, in such circumstances, the order dated 18th December, 2007, passed in the said suit, was not sound in law. In relation to Civil Suit No. 65 of 2003, it was observed that, in the said suit, an application was filed by the defendants for referring the matter to arbitration, to which an objection was filed. 6th December, 2007 was fixed for disposal of the said application. On 2nd November, 2007, petitioner observed that, on the next date fixed, responsible representative of the parties shall remain present in the court. On 6th December, 2007, arguments were heard and 24th December, 2007 was fixed for order. Petitioner, then, passed an order indicating that the defendants were directed to appear on the date fixed, but since no responsible person appeared for the defendants, therefore, the suit shall proceed under Order 9 Rule 12 of the C.P.C. Petitioner did not direct any particular person to remain present in court so as to attract the provisions of Order 9 Rule 12 of C.P.C. It was observed that these orders were not sound in law. It was observed also that, against the order dated 28th September, 2007 passed in Criminal Revision No. 147 of 2007, revision was allowed. It was then observed that the petitioner is not amenable to the advice of the District 11 Judge, he is arrogant and mischievous and he creates problems for the District Judge. It was also observed that, on pages 2 & 3 of the Annual Confidential Report, District Judge has given instances, which really reveal that the petitioner is not amenable to the advice of the District Judge and the petitioner was adopting and insisting on false pleas to get things done and, therefore, he was mischievous and