[2010] 11 S.C.R. 216

PYARE MOHAN LAL v.

STATE OF JHARKHAND & ORS. (Writ Petition (C) No. 382 of 2003)

SEPTEMBER 10, 2010

[J.M. PANCHAL, DEEPAK VERMA AND DR. S.S.

CHAUHAN, JJ.]

Service law:

Compulsory retirement - Judicial review - Scope of

Compulsory retirement - Adverse entries in the ACRs - Significance of, while retiring a person compulsorily - Held: The adverse entries remain part of the record for overall D consideration to retire a government servant compulsorily - The object always is public interest - Such entries do not lose significance, even if the employee has subsequently been promoted - The law requires the Authority to consider .the "entire service record" of the employee before assessing him E for compulsory retirement irrespective of the fact that the adverse entries were not communicated to him or that he was promoted earlier in spite of those adverse entries - A single adverse entry regq!_ding the integrity of arr employee, even, in remote past is sufficient to award compulsory retirement - F Doctrine - Washed off theory.

Compulsory retirement - Judicial Officer compulsorily retired in public interest - Held: The case of a Judicial Officer is required to be examined! treating him different from other G wings of the society, as he is serving the State in a different capacity - His case is considered by a Committee of Judges of the High Court dulyf. constituted by the Chief Justice and then the report of the Committee is placed before the Full Court - A decision is taken by the Full Court after due

H 216

PYARE MOHAN LAL v. STATE OF JHARKHAND & 217

ORS.

deliberation on the matter - Therefore, fault cannot be found A in the decision making process or the decision - The perusal of some of the entries in the ACRs of the Judicial Officer of the last years showed that he remained an average officer throughout his service career and could never improve - His out turn was poor -'- He was given adverse entries regarding B his integrity and reputation - No reason to interfere with the order of compulsory retirement - Jharkhand Civil Service Code - r. 74(b)(ii).

Precedent: Conflict between judgments - Held: C Judgment of larger bench to be followed.

Relief - Held: Relief not specifically sought cannot be granted by the court

The petitioner was a judicial officer. In his ACRs for o the year 1996-97 to 2001-2002, certain adverse remarks were made against him. His name was recommended for promotion in October, 2001 and he was appointed as Additional District and Sessions Judge on ad hoc basis.

On 12.5.2003, an order of compulsory retirement of six judicial officers including the petitioner was issued in public interest invoking the provision of Rule 74(b)(ii) of the Jharkhand Civil Services Code. The instant writ petition was filed challenging the said order of compulsory retirement.

Dismissing the writ petition, the Court

HELD: 1. 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 G misconduct, as prescribed in the Statutory Rules. The Authority must consider and examine the over-all 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

A satisfactory performance, the Authority may desire to

compulsorily retire an employee in public interest, if 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 s employee "rendered himself a liability to the institution",

there is no occasion for the Court to interfere in exercise of its limited power of judicial review. [Para 18) [231-E-G]

Baikuntha Nath Das & Anr. v. Chief District Medical Officer, Baripada & Anr. AIR 1992 SC 1020; Posts and C Telegraphs Board & Ors. v. C.S.N. Murthy AIR 1992 SC 1368; Sukhdeo v. Commissioner Amravati Division, Amravati & Anr. (1996) $ SCC 103; l.K. Mishra v. Union of India & Ors.

AIR 1997 SO 3740; M.S. Bindra v. Union oflndia & Ors. AIR 1998 SC 3058; Rajat Baran Roy & Ors. v. State of West D Bengal & Ors. AIR 1999 SC 1661; State of Gujarat & Anr. v.

Suryakant Chunilal Shah (1999) 1 SCC 529; State of UP. & Anr. v. Bihari Lal AIR 1995 SC 1161; State of UP. & Ors. v.

Vijay Kumar Jain AIR 2002 SC 1345; Jugal Chandra Saikia

v. State of Assam & Anr. AIR 2003 SC 1362; Nawal Singh v.

E State of UP. & Anr. AIR 2003 SC 4303; Chandra Singh &

Ors. v. State of Rajasthan & Anr. AIR 2003 SC 2889; Shiv Dayal Gupta v. State of Rajasthan & Anr. (2005) 13 SCC 581; M. P. State Cooperative Dairy Federation Ltd. & Anr. v.

RajneiSh Kumar Jamindar & Ors. (2009) 15 SCC 221; F Surender Kumar v. Union of India & Ors. (2010) 1 SCC 158,

relied on.

2. In *State of Punjab, a two-Judge Bench of this Court held that adverse entries regarding the dishonesty and G inefficiency of the government employee in his ACRs have to be ignored if, subsequent to recording of the same, he had been allowed to cross the efficiency bar, as it would mean that while permitting him to cross the efficiency bar such entries had been considered and were not found of serious nature for the purpose of H

PYARE MOHAN LAL v. STATE OF JHARKHAND & 219

ORS.

crossing the efficiency bar. This view was based on A washed off theory. However, a three-Judge Bench of this Court in **State of Orissa taking a different view held that such entries still remain part of the record for overall consideration to retire a g()vernment servant compulsorily. The object always is public interest.

B Therefore, such entries do not lose significance, even if the employee has subsequently been promoted. In case of conflict between two or more judgments of this Court, the judgment of the larger Bench is to be followed. More so, the washed off theory does not have universal c application. It may have relevance while considering the case of government servant for further promotion but not in a case where the employee is being assessed by the Reviewing Authority to determine whether he is fit to be retained in service or is required to be given compulsory 0 retirement, as the Authority is to assess his suitability taking into consideration his "entire service record". [Paras 19, 21, 26] [232-A-B; G-H; 233-A; 235-B-C]

**State of Orissa & Ors. v. Ram Chandra Das AIR 1996 SC 2436; State of Gujarat v. Umedbhai M. Patel AIR 2001 E SC 1109; State of UP. v. Ram Chandra Trivedi AIR 1976 SC 2547; Smt. Triveniben v. State of Gujarat AIR 1989 SC 1335, relied on.

*State of Punjab v. Dewan Chuni Lal AIR 1970 SC 2086; F Baidyanath Mahapatra v. State of Orissa & Anr. AIR 1989 SC 2218, referred to.

3. A perusal of some of the entries in the ACRs' of the petitioner of the previous years showed that the petitioner remained an average officer throughout his G service career and could never improve. His out turn was poor; he was given adverse entries regarding his integrity/reputation as not good in the years 1999-2000 and remarks to that effect by the Inspecting Judges in 1997 and 2001-2002. The petitioner made a bald assertion H

A that the advers.g entries were not yet communicated to him. Indisputably, uncommunicated adverse entries could be taken into account for the purpose of assessing an officer for compulsory retirement. The petitioner did not disclose on what dates the representations against the B adverse entries were made by him. He did not challenge'

the said adverse entries, rather he considered it appropriate to challenge only the order of compulsory retirement which was a consequential effect of such adverse entries. The law requires the Authority to c consider the "entire service record" of the employee

while assessing whether he can be given compulsory

retirement irrespective of the fact that the adverse entries were not communicated to him and the officer was promoted earlier in spite of those adverse entries. More

0 so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement. The case of a; Judicial Officer is required to be examined, treating hilJI different from other wings of the society, as he is serving the State in a E different capacity. The case of a Judicial Officer is considered by a Committee of Judges of the High Court duly constituted by the Chief Justice and then the report of the Committee is placed before the Full Court. A decision is taken by the Full Court after due deliberation on the matter. Therefore, there is hardly any chance to F make the allegations of nonapplication of mind or ma/a fide. [Paras 28, 29] [235-E; 236-G-H; 237-A-F]

4. The service record of the petitioner revealed that he had not been promoted in the regular cadre of the G District Judge as he was not found fit for the same because of the adverse entries. The petitioner was promoted as Additional District Judge on Ad hoc basis and posted in the Fast Track Court. It was definitely not a promotion on merit (selection). The High Court H objectively decided to recommend his compulsory

PYARE MOHAN LAL v. STATE OF JHARKHAND & 221

ORS.

retirement and the State Authorities acted accordingly. No A fault can be found with the decision making process or with the decision. The original service record of the petitioner was placed before this Court alongwith the report submitted by the Judicial Commissioner, who after taking into consideration a large number of facts B recorded that the general reputation of the petitioner was not good, but no one had approached with any specific case against his general reputation. [Paras 30, 31] [237-

G-H; 238-A-F]

5. There was no factual foundation in the contention C of the petitioner that adverse entries were not made in bona fide manner and as per the requirement prescribed by circulars etc., and, therefore, the consequential order of compulsory retirement was illegal. The petitioner had sought quashing of the order of compulsory retirement D and not quashing of the adverse entries. Relief not specifically sought cannot be granted by the court.

Therefore, there was no occasion to probe the issue further. In view of the same, there was no cogent reason to interfere with the impugned order. [Paras 32, 33] [238- E

G-H; 239-A-B]

Baldev Raj Chadha v. Union of India & Ors. AIR 1981 SC 70, relied on.

Case Law Reference:

AIR 1992 SC 1020 relied on Paras 8, 20

AIR 1992 SC 1368 relied on Para 9

(1996) 5 sec 103 relied on Para 9

AIR 1997 SC 3740 relied on Para 9

AIR 1998 SC 3058 relied on Para 9

AIR 1999 SC 1661 relied on Para 9

(1999) 1 sec 529 relied on Para 10

AIR 1995 SC 1161 relied on Para 11

AIR 2002 SC 1345 relied on Paras 12, 16,23 B

AIR 2003 SC 1362 relied on Para 13

AIR 2003 SC 4303 relied on Para 14

AIR 2003 SC 2889 relied on Para 15 c

(2005) 13 sec 581 relied on Para 16

(2009) 15 sec 221 relied on Para 17

(201 O) 1 sec 158 relied on Para 17

AIR 1970 SC 2086 referred to Para 19

AIR 1989 SC 2218 referred to Para 20

AIR 1996 SC 2436 relied on Para 21

AIR 2001 SC 1109 relied on Para 22 E

AIR 1976 SC 2547 relied on Para 24

AIR 1989 SC 1335 relied on Para 25

AIR 1981 SC 70 relied on Para 32 F CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 382 of 2003.

Sunil Kumar, C.K. Sucharita for the Petitioner.

G Ashok Mathur Anil K. Jha, Santosh Kumar for the Respondents.

The Judgment of the Court was delivered by

DR. 8.S. CHAUHAN, J. 1. This writ petition has been filed H

PYARE MOHAN LAL v. STATE OF JHARKHAND & 223

ORS. [DR. B.S. CHAUHAN, J.]

against the order dated 20.5.2003, passed by the State of A Jharkhand - Respondent No. 2, giving compulsory retirement to the petitioner, a Judicial Officer of the State of Jharkhand, on the recommendation of the High Court of Jharkhand - the respondent No. 3 on administrative side.

2. Facts and circumstances giving rise to this case are that the petitioner was selected in the Bihar Civil Services (Judicial Branch) in 1982 and was appointed to the post of Munsif by

the State and was confirmed in the grade of Munsif vide order dated 11th March, 1987. He was further promoted to the junior selection grade post in the cadre of Munsif of the Bihar Judicial C Service vide order dated 23rd September, 1994. The Patna High Court issued Notification dated 10th March, 2001 promoting the petitioner to the post of Subordinate Judge.

3. Consequent to the bifurcation of the State of Bihar and D formation of the State of Jharkhand, the services of the petitioner were allocated to the Jharkhand State by the order of the Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training), New Delhi dated 28th March, 2001. The petitioner was appointed as a Sub-Judge, E Ranchi, vide Notification dated 21st April, 2001, issued by the High Court of Jharkhand and, subsequently, the petitioner was placed at the disposal of the State of Jharkhand as Under Secretary-cum-Deputy Legal Remembrancer and Law Officer in the Law Department vide order dated 1st August, 2001.

4. The High Court of Jharkhand recommended the name of the petitioner along with others for promotion to the post of Additional District Judge on Ad hoc basis vide letter dated 21st October, 2001. The petitioner was appointed as Additional District and Sessions Judge, (Fast Track), on ad-hoc basis and G was posted at Ranchi vide order dated 14th December, 2001.

The High Court of Jharkhand on administrative side vide order dated 12th May, 2003 recommended compulsory retirement of six judicial officers including the petitioner, and in pursuance H

A thereof, the Respondent No. 2 issued a consequential order of

compulsory retirement of the petitioner dated 20th May, 2003, in public interest, invoking the provisions of Rule 74(b)(ii) of the Jharkhand Civil Services Code (hereinafter called the Code) along with five other judicial officers. Hence, this writ petition.

5. Shri Sunil Kumar, learned Senior Advocate appearing for the petitioner, has submitted that the petitioner had unblemished service record and there was no adverse entry against him and he had even been promoted to the post of C Additional District and Sessions Judge, (Fast Track), thus adverse entries, if any, stood washed off as the same had been prior to the date of his promotion. The order of compulsory retirement passed by Respondent No. 2 is arbitrary, unreasonable and unwarranted. The adverse entries on the basis of which the petitioner had been given compulsory D retirement had not been communicated to the petitioner. The representation made by the petitioner against the said adverse entries has not been disposed of till date. The order of compulsory retirement as far as the petitioner is concerned cannot be held to be in public interest; there was no material E whatsoever to support the conclusion reached by the High Court

of Jharkhand. The recommendation made by the High Court is unreasonable and arbitrary. Order impugned casts stigma.

Rule 74(b)(ii) of the Code empowers competent authorities only to get rid of and to do away with the services of employees, F who have lost their utility, became useless and whose further continuance in service is not in public interest. There was no occasion for the respondents to pass an order of compulsory retirement of the petitioner in absence of any material to justify such an order. Thus, the order impugned is liable to be held to G be illegal and invalid. Petition deserves to be allowed.

6. On the other hand, Shri Ashok Mathur and Shri Anil Kumar Jha, learned counsel appearing for the respondents, have vehemently opposed the petition contending that there had been large number of adverse entries against the petitioner H and the said entries were not expunged; his disposal was very

PYARE MOHAN LAL v. STATE OF JHARKHAND & 225

ORS. [DR. B.S. CHAUHAN, J.]

low; he did not enjoy a good reputation as several entries A relating to his integrity being doubtful had been recorded. Thus, he could not claim himself to be fit to be retained in judicial service. The petition lacks merit and is liable to be dismissed.

7. We have considered the rival submissions made by learned counsel for the parties and perused the record.

COMPULSORY RETIREMENT

8. In Baikuntha Nath Das & Anr. Vs. Chief District Medical Officer, Baripada & Anr., AIR 1992 SC 1020, this c Court has laid down certain criteria for the Courts, on which it can interfere with an order of compulsory retirement and they include mala tides, if the order is based on no evidence, or if the order is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, i.e. if it o is found to be a perverse order. The Court held as under:-

"(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 (; Ompulsorily. 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 the Court would not examine the matter as

an appellate Court, they may interfere if they are satisfied G that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitraryin 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 taking a decision in the matterof 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 whUe passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference." (Emphasis added).

9. Similar view has been reiterated by this Court in Posts and Telegraphs Board & Ors. Vs. C.S.N. Murthy, AIR 1992 SC 1368; Sukhdeo Vs. Commissioner Amravati Division, E Amravati & Anr., (1996) 5 SCC 103; l.K. Mishra Vs. Union of India & Ors., AIR 1997 SC 3740; MS. Bindra Vs. Union of India & Ors., AIR 1998 SC 3058; and Rajat Baran Roy & Ors.

Vs. State of West Bengal & Ors., AIR 1999 SC 1661. This Court observed that there was a very limited scope of judicial F review in a case of compulsory retirement and it was

permissible only on the grounds of non-application of mind; mala tides; or want of material particulars. Power to retire compulsorily a Government servant in terms of Service Rules is absolute, provided the authority concerned forms a bona fide G opinion that compulsory retirement is in public interest.

10. In State of Gujarat & Anr. Vs. Suryakant Chunilal Shah, (1999) 1 SCC 529, this Court held that while considering the case of an employee for compulsory retirement, public interest is of paramount importance. The dishonest, corrupt and H dead-wood deserve to be dispensed with. How efficient and

PYARE MOHAN LAL v. STATE OF JHARKHAND & 227

ORS. (DR. B.S. CHAUHAN, J,]

honest an employee is, is to be assessed on the basis of the A material on record, which may also be ascertained from confidential reports. However, there must be some tangible material against the employee warranting his compulsory retirement.

11. In State of UP. & Anr. Vs. Bihari Lal, AIR 1995 SC 1161, this Court held that if the general reputation of an employee is not good, though there may not be any tangible material against him, he may be given compulsory retirement

in public interest and judicial review of such order is permissible C only on limited grounds. The Court further held that:

" ..... What is needed to be looked into, is the bona fide decision taken in public interest to augment efficiency in the public service."

12. In State of UP. & Ors. Vs. Vijay Kumar Jain, AIR 2002 SC 1345, U:iis Court while dealing with the issue observed as under:

"Withholding of integrity of a government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13-6-1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory retirement. During pendency of the writ petition in the High Court, the U.P. Services Tribunal on a claim petition filed by the respondent, shifted the entry from 1997-98 to 1983-84. Shifting of the said entry to a different period or entry going beyond ten years of passing of the order of compulsory retirement does not mean that vigour and sting of the adverse entry is lost.

Vigour or sting of an adverse entry is not wiped out, merely it is relatable to 11th or 12th year of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory

A retirement from service, was duly considered by the State Government and the said single adverse entry in itself was sufficient to compulsorily retire the respondent from service.

We are, therefore, of the view that entire service record or confidential report with emphasis on the later entries in B the character roll can be taken into account by the Government while considering a case for compulsory retirement of a government servant. (Emphasis added)

13. In Juga/ Chandra Saikia Vs. State of Assam & Anr., AIR 2003 SC 1362, this Court held that where the screening C committee is consisting of responsible officers of the State and they have examined/assessed the entire service record and formed the opinion objectively as to whether any employee is fit to be retained in service or not, in the absence of any allegation of mala tides, there is no scope of a judicial review D against such an order.

14. In Nawal Singh Vs. State of UP. & Anr., AIR 2003 SC 4303, a similar view has been reiterated. The Court observed as under:

"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 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 .

. . . . . . Further, it is impossible to prove by positive evidence

PYARE MOHAN LAL v. STATE OF JHARKHAND & 229

ORS. [DR. B.S. CHAUHAN, J.]

the basis for doubting the integrity of the judicial officer. In the present-day system, reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the performance of the officer concerned from close quarters and formation of his opinion with regard to the overall reputation enjoyed by the officer concerned would be the basis .

. .. .. the lower judiciary is the foundation of the judicial system. We hope that the High Courts would take appropriate steps regularly for weeding out the dead wood or the persons polluting the justice delivery system".

15. In Chandra Singh & Ors. Vs. State of Rajasthan & Anr., AIR 2003 SC 2889, this Court after examining the entire evidence on record came to the conclusion that the compulsory retirement awarded to the appellant therein, Chandra Singh, a Judicial Officer, was not in consonance with law. However, considering the report of the Committee and taking note of the adverse remarks made against him, the Court refused to grant him any relief. The relevant part of the judgment reads as under:

"It will bear repetition to state that in terms of Rule 53 of the Pension Rules, an order for compulsory retirement can be passed only in the event the same is in public interest and/or three months' notice or three months' pay in lieu thereof had been given. Neither of the aforementioned conditions had been complied with ....

We have, therefore, no option but to hold that the actions on the part of the High Court or the State in compulsorily retiring the appellants herein were illegal.

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 deadwood. This constitutional power of the High Court cannot be circumscribed by any rule or order. We

A can usefully refer to some of the leading cases on Article 235:

1. State of Assam v. Rang a Mohd., Al R 1967 SC 903 (five Judges)

2. Samsher Singh v. State of Punjab, AIR 1974 SC 2192 (seven Judges)

3. High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil, AIR 1997 SC 2631.

)()()( xxx xxx

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 D service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility."

16. In Shiv Dayal Gupta Vs. State of Rajasthan & Anr., E (2005) 13 sec 581, this Court examined the case of the compulsory retirement of a Judicial Officer and came to the conclusion that the Review Committee had made an overall assessment considering the entire service record of the said officer and came to the conclusion that continuance of the said F officer in service would be a liability to the Department and adverse to public interest as his ACRs. revealed that he was poor in writing the judgments and was advised to improve the same. His judicial work was found unsatisfactory and he had been advised to improve the same. His integrity was found doubtful in the year 1983. He had earlier been superseded while G being considered for promotion in 1983 and he had been given an adverse entry in 1993 that he failed to inspire confidence in subordinate staff and lawyers and had a low rate of disposal.

On the basis of the aforesaid adverse entries, he was given compulsory retirement vide order dated 9.11.2000. This Court H refused to interfere with the said order in view of the fact that

PYARE MOHAN LAL v. STATE OF JHARKHAND & 231

ORS. [DR. B.S. CHAUHAN, J.]

he could not raise proper allegations of mala tides or establish A that the order of compulsory retirement was passed without application of mind. While deciding the said case, the court placed reliance upon the judgment of this Court in Vijay Kumar Jain (supra).

17. In M.P. State Q_ooperative Dairy Federation Ltd. & Anr. Vs. Rajnesh Kumar Jamindar & Ors., (2009) 15 SCC 221, 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 of statutory C 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 D public function must act fairly.

18. Thus, the law on the point can be summarised 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 E impose a punishment for a proved misconduct, as prescribed in the Statutory Rules. (See Surender Kumar Vs. Union of India & Ors., (2010) 1 sec 158). The Authority must consider and examine the over-all effect of the entries of the officer concerned and not an isolated entry, as it may well be in some F 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 G "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.

A WASHED OFF THEORY

19. In State of Punjab Vs. Dewan Chuni Lal, AIR 1970 SC 2086, a two-Judge Bench of this Court held that adverse entries regarding the dishonesty and inefficiency of the

8 government employee in his ACRs have to be ignored if, subsequent to recording of the same, he had been allowed to cross the efficiency bar, as it would mean that while permitting him to cross the efficiency bar such entries had been considered and were not found of serious nature for the purpose of crossing the efficiency bar. c

20. Similarly, a two-Judge Bench of this Court in Baidyanath Mahapatra Vs. State of Orissa & Anr., AIR 1989 SC 2218, had taken a similar view on the issue observing that adverse entries awarded to the employee in the remote past D lost significance in view of the fact that he had subsequently

been promoted to the higher post, for the reason that while considering the case for promotion he had been found to possess eligibility and suitability and if such entry did not reflect deficiency in his work and conduct for the purpose of promotion, E it would be difficult to comprehend how such an adverse entry

could be pressed into service for retiring him compulsorily.

When a government servant is promoted to higher post on the basis of merit and selection, adverse entries if any contained in his service record lose their significance and remain on F record as part of past history.

This view has been adopted by this Court in Baikuntha Nath Das (supra).

21. However, a three-Judge Bench of this Court in State G of Orissa & Ors. Vs. Ram Chandra Das, AIR 1996 SC 2436, had taken a different view as it had been held therein that such entries still remain part of the record for overall consideration to retire a government servant compulsorily. The object always is public interest. Therefore, such entries do not lose

PYARE MOHAN LAL v. STATE OF JHARKHAND & 233

ORS. [DR. B.S. CHAUHAN, J.]

significance, even if the employee has subsequently been A promoted. The Court held as under:-

"Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant 8 could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into C consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of service or qualified D period of service for pension." (Emphasis added)

22. This judgment has been approved and followed by this court in State of Gujarat Vs. Umedbhai M. Patel, AIR 2001 SC

1~09, emphasising that the "entire record" of the government E servant is to be examined.

23. In Vijay Kumar Jain, (supra), this Court held that the vigour or sting of an entry does not get wiped out, particularly, while considering the case of employee for giving him compulsory retirement, as it requires the examination of the entire service records, including character rolls and confidential reports. 'Vigour or sting of an adverse entry is not wiped out' merely it relates to the remote past. There may be a single adverse entry of integrity which may be sufficient to compulsorily retire the government servant.

Larger Benchs' Judgment:

24. In State of UP. Vs. Ram Chandra Trivedi, AIR 1976 SC 2547, this Court observed that it must be borne in mind that H

A in cases where there is any conflict between the views expressed by larger and smaller Bench of this Court, the court cannot disregard or skirt the views expressed by the larger Bench.

25. In Smt. Triveniben Vs. State of Gujarat, AIR 1989 SC 1335, this Court considered the issue and observed as under:

" ...... The practice over the years has been that a larger bench straightway considers the correctness of and if necessary overrules the view of a smaller bench. This C practice has been held to be a crystallised rule of law in a recent decision by a Special Bench of seven learned Judges. In A. R. Antu/ay v. R. S. Nayak, AIR 1988 SC

1531, Sabyasachi Mukharji, J., speaking for the majority said (at p. 1548 of AIR) : D

'The principle that the size of the bench whether it is comprised of two or three or more judges does not matter, was enunciated in Young v. Bristol Aeroplane Ltd., (1944- 2 All ER 293) (supra) and followed by Justice Chinnappa Reddy in Javed Ahmad Abdul Hamid Paw/a v. State of Maharashtra, (AIR 1985 SC 231), where it has been held that a Division Bench of two judges, has not been followed by our Courts.

xxxx xXxx xxxx xxxx xxxx

The law laid down by this Court is somewhat different.

There is a hierarchy within the Court itself here where larger benches overrule smaller benches. See M.attulal v.

Radhey Lal, AIR 1974 SC 1596, Union of India v. K. S.

Subramanian, AIR 1976 SC 2433 at 2437; and State of UP. v. Ram Chandra Trivedi, AIR 1976 SC 2547 at p.

2555. This is the practice followed by this Court and now it is a crystallised rule of law.'

The answer to the question posed in Javed Ahmad case thus stands concluded and it is now not open to any one

PYARE MOHAN LAL v. STATE OF JHARKHAND & 235

ORS. [DR. B.S. CHAUHAN, J.]

to contend that a bench of two judges cannot be overruled by a bench of three judges. We must regard this as a final seal to the controversy."

26. In view of the above, the law can be summarised to state that in case there is a conflict between two or more judgments of this court, the judgment of the larger Bench is to be followed. More so, the washed off theory does not have universal application. It may have relevance while considering the case of government servant for further promotion but not in a case where the employee is being assessed by the Reviewing Authority to determine whether he is fit to be retained in service or requires to be given compulsory retirement, as the Committee is to assess his suitability taking into consideration his "entire service record".

27. The instant case is to be examined in the light of the aforesaid settled legal propositions.

28. Some of the entries in the ACRs' of the petitioner of the last years, which are relevant for this purpose are being mentioned here as under:

Year

1996-97

1997-98

1998-99

Remarks

(i) Knowledge - Average

(ii) Promptness in disposal - Out turn Poor

(iii) Net Result - Average

(i) Promptness in Disposal - Average

(ii) Efficiency - Average

(iii) Net result - Average officer capable of improvement

(i) Promptness in disposal - Average

(ii) Efficiency - Average

(iii) Net result - out-turn capable of improvement

1999-2000

(i) Promptness in disposal - Average

(ii) Efficiency - Average

(iii) Reputation - Not good

Is he fit for exercise of any enhanced power - No

Beside these, adverse remarks made by the inspecting Judge against the petitioner are given as under:

Year Remarks

30.8.1997

(i) Knowledge - Average, extensive study required.

(ii) Promptness in disposal - Not upto E mark

2001-02

(iii) Reputation - Some whispers are there but nothing concrete could be found.

(i) Judgment - Average i.e. B

(ii) Efficiency - Average (B)

(iii) Integrity - Seriously Doubtful

29. It is evident from the aforesaid service record of the G petitioner that he remained an average officer throughout his service career and could never improve. His out turn had been poor; he had been given adverse entries regarding his integrity/ reputation as not good in the years 1999-2000 and remarks to that effect by the Inspecting Judges in 1997 and 2001-2002.

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ORS. [DR. B.S. CHAUHAN, J.]

The petitioner had made a bald assertion that the adverse A entries have not yet been communicated to him. It has been repeatedly submitted by him that representations made by him against the said adverse entries had not been disposed of.

Indisputably, uncommunicated adverse entries could be taken into account for the purpose of assessing an officer for compulsory retirement. The petitioner has not disclosed on what dates the representations against the adverse entries had been made. The petitioner had not challenged the said adverse entries, rather he considered it appropriate to challenge only

the order of compulsory retirement which has been a c consequential effect of such adverse entries. The law requires the Authority to consider the "entire service record" of the employee while assessing whether he can be given compulsory retirement irrespective of the fact that the adverse entries had not been communicated to him and the officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement. The case of a Judicial Officer is required to be examined, treating him to be differently from other wings of the society, as he is serving the State in a different capacity. The case of a Judicial Officer is considered by a Committee of Judges of the High Court duly constituted by Hon'ble the Chief Justice and then the report of the Committee is placed before the Full Court. A decision is taken by the Full Court after due deliberation on the matter. Therefore, there is hardly any chance to make the allegations of nonapplication of mind or mala fide.

30. Be that as it may, the service record of the petitioner revealed that he had not been promoted in the regular cadre

of the District Judge as he was not found fit for the same G because of the adverse entries. Petitioner was promoted as Additional District Judge on Ad hoc basis and posted in the Fast Track Court. It was definitely not a promotion on merit (selection). The High Court had objectively decided to

A recommend his r, ompulsory retirement and the State Authorities acted accordingly. No fault can be found with the decision making process or with the decision.

31. We do not find any force in the submissions made by

8 Shri Sunil Kumar, learned senior counsel appearing for the petitioner that the counter affidavit filed by the High Court and the State reveal that certain reports called for from the District Judge had been considered, though such reports were not even available, and therefore, the affidavit to that extent is misc leading. In fact, it is evident from the record that at the time of making of the note by the Registry for the Full court, it had been mentioned that report was still awaited. However, by the time the Full Court was held the report had been made available and was duly considered. Shri Ashok Mathur and Shri Anil Kr. Jha, learned counsel appearing for the respondents had placed D before us the original record relating to the services of the petitioner and the report submitted by the Judicial Commissioner, Ranchi dated 5.4.2003, who after taking into consideration a large number of facts recorded the following conclusion: E

"However, on confidential enquiry I have found that his general reputation is not so good, but still no one came to me with any specific case against his general reputation."

Thus, the aforesaid submission made on behalf of the F petitioner is preposterous.

32. Placing reliance on the judgments of this Court in M.S.

Bindra (supra) and Baldev Raj Chadha Vs. Union of India & Ors., AIR 1981 SC 70, it has been canvassed on behalf of the G petitioner that adverse entries had not been made in bona fide manner and as per the requirement prescribed by circulars etc.

Therefore, the consequential order of compulsory retirement is illegal. There is no factual foundation on the basis of which such an assertion can be examined, nor there is a challenge in the

PYARE MOHAN LAL v. STATE OF JHARKHAND & 239

ORS. [DR. B.S. CHAUHAN, J.]"

writ petition to the said adverse entries. Petitioner sought A quashing of order of compulsory retirement dated 20.5.2003 and not quashing of the adverse entries. Relief not specifically sought cannot be granted by the court. Therefore, there is no occasion for us to probe the issue further.

33. In view of the above, we do not find any cogent reason to interfere with the impugned order. The petition lacks merit and is accordingly dismissed. No costs.

D.G.

Writ Petition dismissed.