[2011] 15 (ADDL.) S.C.R. 827

PRATAP SINGH

STATE OF U.P. & ANR.

(CIVIL APPEAL NO. 2307 OF 2011)

NOVEMBER 15, 2011

[R.M. LODHA AND JAGDISH SINGH KHEHAR, JJ.]

Judicial Service - Uttar Pradesh Higher Judicial Service Rules, 1975 - Rule 22 - Appellant, a judicial officer not promoted in the substantive vacancy to Uttar Pradesh Higher C Judicial Service (UPHJS) and, reverted as Civil Judge (Senior Division) - On basis of remarks given by the District Judge in the ACR of appellant that he was most irresponsible and indisciplined officer - Legality of - Held: Documentary evidence on record made it clear that tie remarks of the D District Judge that the appellant was, 'irresponsible and indisciplined officer who has no regard for superiors or truth' had been expunged/substituted by the Inspecting Judge - The effect of such expunctionlsubstitution was that the appellant could not be considered an irresponsible or E indisciplined officer on the basis of remarks recorded by the District Judge - Due to consideration of the remarks recorded by the District Judge and not taking into consideration that such remarks were expunged/substituted as communicated to the appellant, the very consideration of the appellant's case F for promotion in the substantive vacancy in UPHJS under the 1975 Rules by the selection committee and by the full court got seriously and vitally affected - The matter for appellant's promotion in the substantive vacancy in UPHJS thus needed re-consideration in accordance with law.

The appellant, a judicial officer, was not promoted in the substantive vacancy to Uttar Pradesh Higher Judicial Service (UPHJS) and, as a result, was reverted as Civil Judge (Senior Division). 827

A The Selection committee did not recommend the appellant's name for promotion under Rule 22(1) of the Uttar Pradesh Higher Judicial Service Rules, 1975 in view of the remarks given by the District Judge in the ACR of the appellant. The committee referred to the remarks of B the District Judge that the appellant was most

irresponsible and indisciplined officer. The report of the committee was considered by the full court in its meeting and the name of the appellant was accordingly not approved for appointment in UPHJS under Rule 22 (1) of c the 1975 Rules.

The question which arose for consideration in the instant appeal was whether non-approval of the appellant for promotion in the substantive vacancy in UPHJS under Rule 22(1) of the 1975 Rules suffered from any illegality.

Allowing the appeal, the Court

HELD: 1. It is not in dispute that the remarks recorded by the District Judge, Lalitpur in the ACR for 1996-97 E (June 12, 1996 to March 31, 1997) formed the basis of nonapproval of the appellant'i; name for promotion in the substantive vacancy in the UPHJS. That the District Judge, Lalitpur rated the appellant in the ACR recorded for the above period as an 'irresponsible and indisciplined officer' is borne out from the record. Agai.1st the remarks F made by the District Judge, the appellant made a comprehensive representation to the Registrar on June 28, 1997. The representation made by the appellant was considered by the Inspecting Judge of Lalitpur District.

Vi de communication dated October 21, 1997, the.

G appellant was informed that the adverse remarks recorded by the District Judge in column No. 1 (e)(iii) - 'disposal of old cases : not satisfactory" and the adverse remarks in column no. 1 (e)(iv) -"progress and disposal of execution cases: there were three execution cases of H

PRATAP SINGH v. STATE OF U.P. & ANR. 829

1996 but no case was disposed of" had been expunged.

A In the above communication, the appellant was also informed that column no. 2-"overall assessment of the merit of the officer - outstanding, very good, good, fair, poor : Poor. Irresponsible and indisciplined officer who has no regard for his superiors or truth. Details B mentioned in column no. 3 below" has been substituted by "overall assessment - just average". A careful reading of the communication dated October 21, 1997 leaves no manner of doubt that the adverse remarks given by the District Judge, Lalitpur in column no. 2 that appellant was c irresponsible and indisciplined officer for the facts stated in column no. 3 no longer remained as it is and were substituted by "just average". The consideration of the remarks recorded by the District Judge, Lalitpur by the selection committee as well as by the full court in its D meeting held on July 11, 1998 was, thus, not proper. [Paras 14, 15] [838-G-H; 829-A-G]

2. A judicial officer has to be disciplined and must behave as a responsible officer. Indiscipline in the judiciary cannot be tolerated. However, the remarks of the E District Judge that the appellant was, 'irresponsible and indisciplined officer who has no regard for superiors or truth' have been expunged/substituted by the Inspecting Judge. The effect of such expunction/substitution is that the appellant cannot be considered an irresponsible or F indisciplined officer on the basis of remarks recorded by the District Judge. The gravity of what has been recorded is, thus, lost. Moreover, the root of the problem between the two senior judicial officers appears to be clash of ego.

The observation noted in column (3), 'He never came to G me in the chamber or at the residence to discuss any problem relating to Nazarat' indicates that the District Judge was not happy with the appellant for having not given due importance to him. [Para 17] [841-D-G] H

3. Due to consideration of the remarks recorded by the District Judge and not taking into consideration that such remarks were expunged/substituted as communicated to the appellant vide communication dated October 21, 1997, the very consideration of the B appellant's case for promotion in the substantive vacancy in UPHJS under the 1975 Rules by the selection committee in its meeting dated May 18, 1998 and by the full court in its meeting held on July 11, 1998 gets seriously and vitally affected. [Para 18] [841-H; 842-A-B] c

4. The matter for the appellant's promotion in the substantive vacancy in UPHJS which was considered by the selection committee on May 18, 1998 and by the full court on July 11, 1998 needs to be reconsidered in accordance with law. Since the appellant is likely to D superannuate shortly, the High Court on its administrative side is expected to complete this exercise as early as possible and preferably within one month from the date of the communication of this order. [Para

21] (842-F-G] E

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2307 of 2011.

From the Judgment & dated 21.12.2009 of the High Court of Judicature at Allahabad, Lucknow Bench at Lucknow in Civil F Misc. Writ No. 8 [S/B] Now D.B. of 1999.

Dinesh Dwivedi, P.N. Gupta, Manish Shankar Srivastava, Varun Chaudhary, Prateek Dwivedi for the Appellant.

G Ravi Prakash Mehrotra, Vibhu Tiwari for the Respondents.

The Judgment of the Court was delivered by

R.M. LODHA, J. 1. The appellant - a judicial officer - having not been promoted in the substantive vacancy to Uttar H Pradesh Higher Judicial Service (for short, 'UPHJS') and, as

, a result of which, was reverted as Civil Judge (Senior Division) A is in appeal, by special leave.

2. The appellant, after due selection, joined judicial service in Uttar Pradesh as Munsiff on May 16, 1977 and was confirmed as such on August 30, 1982. He became, Additional 8 Civil Judge on JanuaryA, 1986 and got selection grade of Rs. 3700 - 5000 with effect from April 1, 1990. He then became Civil Judge (Senior Division).

3. The Allahabad High Court, on the administrative side, in its full court meeting held on November 18, 1995, approved C promotion of the appellant in officiating capacity under Rule 22(3) of Uttar Pradesh Higher Judicial Service Rules, 1975 (for short, '1975 Rules'). Pursuant to the above decision taken by the full court, a notification was issued on June 7, 1996 promoting and posting the appellant as Additional District and D Sessions Judge, Lalitpur.

4. While the appellant was posted as Additional District and Sessions Judge, Lalitpur, Shri Mukteshwar Prasad happened to be District Judge, Lalitpur. The appellant was E made Officer in-charge, Nazarat by the District Judge with effect from September 10, 1996. The appellant continued as such until March, 1997 or so. It so happened that in the intervening night of January 30/31, 1997, some thieves entered the residence of the appellant and tried to break open the doors. The appellant suspected the involvement of class-IV employees of F Lalitpur Judgeship. On that day, the District Judge was on leave and the appellant handed over an application to the Senior Administrative Officer wherein he alleged the support of the District Judge to class IV employees suspected to have entered the house of the appellant for theft. The application made by G the appellant to the Senior Administrative Officer was kept in an open envelope. The District Judge, Lalitpur sought explanation from the appellant With regard to the allegations made by him in his application and also gave information of

te incident to the Registrar of the High Court as well as the H

A inspecting Judge of Lalitpur Judgeship on February 19, 1997.

5. In the appellant's annual confidential report (ACR) of the year 1996-97 (June 12, 1996 to March 31, 1997), the District Judge (Shri Mukteshwar Prasad) made the following remarks:

"(a) Integrity of the officer whether beyond doubt, doubtful or positively lacking.

(b) If he is fair and impartial in

dealing with the public and bar.

(c) If he is cool-mind and does not lose temper in court.

( d) His private character, if such as to lower .him in the estimation of the public and adversely affects the discharge of his official duties.

(e) control over the file in the matter of-

(i) Proper fixation of cause list.

(ii) Avoidance of unnecessary adjournments

(iii) Disposal of old

cases.

Beyond doubt. No complaint received.

No specific complaint was made to me.

Yes

No complaint received against his private character.

Not proper. On an Average, he fixed 22-23 cases.

Satisfactory

Not satisfactory.

Disposed of one S.T. of 1991, 2 of 1992 and 6 of 1993

(iv) Progress and disposal of execution cases.

(v) Interim orders, injunctions Being granted, refused to retained for sufficient reasons.

(vi) Are cases remanded on substantial grounds?

(f) Whether judgments on facts and law are on the whole sound, well reasoned and expressed in good language.

(g) Whether disposal of work is adequate (give percentage & reasons for short disposal).

out of 7 of 1991, 32 of A 1992 and 36 of 1993.

There were 3 execution cases of 1996 but no case was disposed of.

One case is stayed by the Hon'ble High Court.

Yes.

No appeal was

remanded. o

Judgments of average quality.

Out-turn being 132% is above the standard.

As per statement received as against

133 working days, he F gave work for 175.88.

(h) Control over the office and Proper. administrative capacity and tact.

(i) Relation with members of the Normal bar [mention incidents, if any]

0) Behaviour in relation to Normal H

brnther Officers [mention incidents, if any]

(k) Whether the officer has made

YES Regular inspections of his court and Offices in his charge during the year and whether such inspections were full and effective.

(I) His punctuality in sitting in the

Punctual. court

(m) Whether amenable to advice of District Judge and other superior Officers.

He is not amenable at all to the advice of the District Judge. Reasons given below in column no. 3. 2.

Overall assessment of the merit of the officer-outstanding, very good, good, fair, poor.

3. Other Remarks, if any.

Poor. Irresponsible and indisciplined officer who has no regard for his super-iors or truth.

Details mentioned in column no. 3 below.

After taking over charge by me in this district, the officer was appointed Officer-in-Charge, Nazarat w.e.f.

10.9.1996. He being the next senior most officer in the Judgeship and only Addi. District Judge at that time, was expected to extend his full cooperation and assistance in the affairs of the Judgeship. Since very beginning, I found that his altitude was not cooperative and in fact he look no interest at all for improvement in working of Nazarat.

He never came to me in the chamber or at the residence to discuss any problem relating to Nazarat. In the month of November, 1996, he made a request in writing for

relieving him from the post of Officer-in-charge, Nazarat. I A summoned him and persuaded to continue as Officer-incharge, Nazarat. With reluctance, he agreed to continue.

Again he sent an application on 22.1.97 for removing him from the post of Officer-in-charge, Nazarat on the ground that Sri Shanker Lal, a Class IV employee was not B transferred by me on his oral and written request. It is noteworthy that Sri Shanker Lal was transferred and in his place Sri Manik Chand was posted in his court vide order dated 30.1.97. Sri Singh was highly interested in a Class IV employee [Sri Swand Singh] and wanted his posting in c his court but he was not transferred there for some administrative reasons. He joined the service in August, 1996.

He always complained of non-cooperation of Central Nazir and other officials working in the Nazarat and passed D an order also on 23.12.96 to the effect that the Central Nazir-never took round of the courts and never checked Chowkidars. In pursuance of this order, Central Nazir Sri Shamsher Bahadur Srivastava took a surprise round of the Civil Court building on 12.1.97 at about 3.35 a.m. and E checked both Chowkidars at 3.50 a.m. Bot~ Chowkidars, ·

namely, Sarvasri Swank Singh and Guiab Chand Saroj were found sleeping. He submitted his report to the Officer-· in-charge, Nazarat to call explanation of the Chowkidars.

Sri Singh took no action against the Chowkidars and F warned them to be vigilant in future.

Sri Singh always found shirking from work and never rendered any assistance to me in dealing with various problems of the Judgeship. Before posting of Sri Jai Singh, a newly promoted Addi. District Judge in the district in the G month of March, 1997, he was senior most Addi. District Judge in the Judgestiip. He, however, did not play his role properly for the simple reason that a Class IV employee of his choice was not posted by me in his court.

2. Sri Singh levelled totally false and baseless allegation against me in writing on 31.1.1997 when I was out of station and had gone to Gwalior. In my absence he handed over an application to Senior Administrative Officer and did not even keep the application in an envelope.

Consequently, the contents of the letter were well-known to all the officials and officers working under me before my arrival at the headquarters. He levelled accusation against me that some thieves tried to break open the doors of his residence in the night intervening 30/31.1.1997. He suspected the involvement of some Class IV employees of the judgeship. According to him the thieves were Class IV employees of the judgeship and I was supporting them.

After having gone through the contents of the letter, I was stunned. I sent a letter to Sri Singh and sought his reply on a few questions. In his reply dated 6.2.97, he tried to twist his letter dated 31.1.97. Thus the officer tried to tarnish my image in the eyes of other officers and officials of the Judgeship and committed an act of gross indiscipline.

I have already communicated these facts to the Registrar of the Hon'ble High Court of Judicature at Allahabad as well as Hon'ble the Inspecting Judge of Lalitpur through my

D.O. letters No. 4 and 5/P.A./1997 dated 19.2.1997.

For all the above reasons, I have rated the officer to be most irresponsible and indisciplined."

6. The above adverse remarks recorded by the District Judge, Lalitpur were communicated to the appellant on May 30,

1997. On receipt of the communication, the appellant made G representation to the Registrar on June 28, 1997 and prayed that the adverse remarks recorded by the District Judge be expunged.

7. On October 21, 1997, the appellant was communicated H by the Joint Registrar that after consideration of his

representation, the remarks recorded by the District Judge in A Column No. 1 (e)(iii), 1 (e)(iv) for the year 1996-97 have been expunged and Column No. 2 has been substituted by the court as - 'overall assessment - just average'.

8. It is the appellant's case that on July 11, 1998, he came B to know that the full court in its meeting held on that day did not approve the appellant's name for his appointment in the substantive vacancy in UPHJS. The appellant submitted a representation to the High Court on administrative side on August 19, 1998 to reconsider the decision taken on July 11, C

1998. The representation of the appellant was not favourably considered and on December 5, 1998 a notification was issued on the basis of the decision taken by the full court on July 11, 1998 reverting the appellant to the judicial service, i.e. Civil Judge (Senior Division).

9. The appellant challenged the notification dated December 5, 1998 in a writ petition before the Allahabad High Court at Lucknow Bench and prayed for quashing the same.

He prayed that report of the selection committee dated May 18, 1998 and record of the decision of the full court taken on July E 11, 1998 insofar as appellant was concerned be called for and a writ of mandamus be issued commanding the respondents to treat the appellant having been promoted to the UPHJS and ignore the remarks made by the District Judge in the ACR for the year 1996-97.

10. The above writ petition was contested by the respondents.

11. The Division Bench of the High Court, after hearing the parties, by its order dated December 21, 2009 dismissed the G writ petition.

12. We heard Mr. Dinesh Dwivedi, learned senior counsel for the appellant and Mr. Ravi Prakash Mehrotra, learned

counsel for the respondent no. 2.

SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.

13. From the counter affidavit filed before this Court on behalf of respondent No. 2 - High Court of Judicature at Allahabad - it transpires that the matter for promotion of the appellant in UPHJS under Rule 22 (3) of the 1975 Rules was considered by the HJS Selection Committee of three-Judges B in its meeting held on November 10, 1995 and the name of the

appellant was recommended for promotion to UPHJS in adhoc capacity. The report of the selection committee was considered by the full court in its meeting held on November 18, 1995 and the appellant's name was approved for promotion C to UPHJS in ad-hoc capacity. The appellant was accordingly

promoted to UPHJS and given posting at Lalitpur as Additional District and Sessions Judge. Thereafter appellant's matter for promotion in the substantive vacancy in UPHJS was considered by the selection committee comprising of three- Judges on May 18, 1998. The committee, however, did not D recommend the appellant's name for promotion under Rule

22(1) of the 1975 Rules in view of the remarks given by the District Judge in the ACR for the year 1996-97. The committee referred to the remarks of the District Judge made in column 3 that he was most irresponsible and indisciplined officer. The E report of the above committee was considered by the full court in its meeting held on July 11, 1998 and his name was not approved for appointment in UPHJS under Rule 22 (1) of the 1975 Rules. The question before us is: whether non-approval of the appellant for promotion in the substantive vacancy in F UPHJS under Rule 22(1) of the 1975 Rules suffers from any

illegality.

14. It is not in dispute that the remarks recorded by Uie District Judge, Lalitpur in the ACR for 1996-97 (June 12, 1996 G to March 31, 1997) formed the basis of non-approval of the

appellant's name for promotion in the substantive vacancy in the UPHJS. That the District Judge, Lalitpur rated the appellant in the ACR recorded for the above period as an 'irresponsible and indisciplined officer' is borne out from the record. Against H the remarks made by the District Judge, the appellant made a

comprehensive representation to the Registrar on June 28, A.

1997. It is not necessary to refer to the representation made by the appellant in detail. Suffice it to say that the appellant did highlight that his integrity has been found to be beyond doubt and that in about 20 years of his judicial service, he has been posted with 24 District Judges and except the adverse remarks B made by Shri Mukteshwar Prasad, District Judge, Lalitpur for the above period at no point of time any District Judge recorded any adverse remark about his conduct, integrity or performance.

The appellant emphatically denied the observations of the District Judge, Lalitpur, recorded in the ACR and explained the c entire episode.

15. The representation made by the appellant was considered by the Inspecting Judge of Lalitpur District. Vide communication dated October 21, 1997, the appellant was informed that the adverse remarks recorded by the District D Judge in column No. 1 (e)(iii) - 'disposal of old cases : not satisfactory" and the adverse remarks in column no. 1 (e)(iv) - "progress and disposal of execution cases: there were three execution cases of 1996 but no case was disposed of' had been expunged. In the above communication, the appellant was E also informed that column no. 2-"overall assessment of the merit of the officer - outstanding, very good, good, fair, poor: Poor. Irresponsible and indisciplined officer who has no regard for his superiors or truth. Details mentioned in column no. 3

below" has been substituted by "overall assessment - just F average". A careful reading of the communication dated October 21, 1997 leaves no manner of doubt that the adverse remarks given by the District Judge, Lalitpur in column no. 2 that appellant was irresponsible and indisciplined officer for the facts stated in column no. 3 no longer remained as it is and G were substituted by "just average". The consideration of the remarks recorded by the District Judge, Lalitpur by the selection committee as well as by the full court in its meeting held on July

11, 1998 was, thus, not proper.

16. However, in the counter affidavit filed on behalf of H

A respondent No. 2 before this Court, in paragraph 'C', the complete text of the order passed by the Inspecting Judge on August 6, 1997 on the representation of the appellant has been re-produced which reads as follows :

1 have gone through the adverse remarks given by the District Judge, Sri Mukteshwar Prasad in para - 1 (e)(i), 1(e)(iii), 1(e)(iv), 1(f) and 1(m) as well as in column no. 2 relating to "over all assessment" and column no. 3 relating to "other remarks, if any", I have also gone through the representation preferred by the officer concerned. Looking to the representation made by the officer concerned, I feel that the conclusions arrived at by the District Judge in para 1 (e)(i) and 1 (f) do not deserve to be expunged while the conclusions arrived at under column 1(e)(iii) and 1(e)(iv) deserve to be expunged . •

The details given by the District Judge in remarks column no. 3 do go to indicate that Sri Pratap Singh-II is not amenable to the advice of the former, i.e. District Judge. As far as the over-all assessment taken to be 'poor' by the District Judge is concerned; I do not agree with the conclusions arrived at by him. Instead, looking to the reasons given by the Judicial Officer, Sri Pratap Singh-II in this regard, I find logic in them; since his integrity has been described by the District Judge to be beyond doubt and his work out-tum has been described to be above standard then, obviously, the over all assessment could not be 'poor'. Thus, it deserves to be expunged, and, instead, keeping in mind the complete A.C.R. and the remarks given by the District Judge, overall assessment can be rated as "just average'.

Further, since remarks given by the District Judge, Sri Mukteshwar Prasad are based on factual aspects which had also been communicated to the Registrar of the High Court as well as to me, the Inspecting Judge, at the opportune time, hence, they do not deserve to be

expunged, and the representation made by the Judicial A Officer, Sri Pratap Singh-II in this regard deserves to be rejected."

17. On October 11, 2011, in course of hearing, Mr. Ravi Prakash Mehrotra, learned counsel for respondent No. 2 made a request for adjournment to enable him to seek instructions B as to whether or not along with the communication dated October 21, 1997, copy of the decision of the Inspecting Judge, as reproduced above, was sent to the appellant. We acceded to the request of the counsel and kept the matter for October 18, 2011. On October 18, 2011, Mr. Ravi Prakash Mehrotra, c fairly stated that the copy of the decision of the Inspecting Judge was not sent to the appellant and he was informed of what was contained in the communication dated October 21, 1997 only:

In our view, in the above circumstances the text of the decision of the Inspecting Judge dated August 6, 1997 cannot be used D against the appellant. It needs no emphasis that a judicial officer has to be disciplined and must behave as a responsible officer.

Indiscipline in the judiciary cannot be tolerated. However, as noted above, the remarks of the District Judge that the appellant was, 'irresponsible and indisciplined officer who has E no regard for superiors or truth' have been expunged/substituted

by the Inspecting Judge. The effect of such expunction/ substitution is that the appellant cannot be considered an irresponsible or indisciplined officer on the basis of remarks recorded by the District Judge. The gravity of what has been recorded in column (3) is, thus, lost. Moreover, the root of the problem between the two senior judicial officers appears to be clash of ego. In the words of Samuel Johnson, every man is of importance to himself. The observation noted ln column (3), 'He never came to me in the chamber or at the residenc~ to discuss any problem relating to Nazarat' indicates that the. District G Judge was not happy with the appellant for having not gin due importance to him.

18. Be that as it may, due to consideration of the remarks recorded by the District Judge and not taking into consideration H

A that such remarks were expunged/substituted as communicated to the appellant vide communication dated October 21, 1997, the very consideration of the appellant's case for promotion in the substantive vacancy in UPHJS under the 1975 Rules by the selection committee in its meeting dated B May 18, 1998 and by the full court in its meeting held on July 11, 1998 gets seriously and vitally affected.

19. It is important to notice that in the counter affidavit filed on behalf of respondent no. 2, it has been stated that appellant's matter for promotion in the substantive vacancy in c UPHJS was again considered by the selection committee on November 24, 2004 but in view of the matter being sub Judice, it was resolved that appellant's name could not be considered for regular appointment under Rule 22(1) of the 1975 Rules and the above report of the selection committee was accepted by

0 the full court in its meeting held on February 5, 2005.

20. In what we have discussed above, it is not necessary to consider the submissions of the learned senior counsel for the appellant that under Chapter Ill, Rule 4(8)(3) and Rule 4(C)(16) of the Allahabad High Court Rules (Rules of the Court), E 1952 framed under Article 225 of the Constitution of India, the District Judge had no competence to make any remark with regard to the appellant.

21. In our view, the matter for the appellant's promotion in the substantive vacancy in UPHJS which was considered by F the selection committee on May 18, 1998 and by the full court on July 11, 1998 needs to be reconsidered in light of the discussion made above and in accordance with law. Since the appellant is likely to superannuate shortly, we expect the High Court on its administrative side to complete this exercise as G early as possible and preferably within one month from the date of the communication of this order.

22 .. The appeal is allowed, as indicated above, with no order as to costs.

H B.B.B.

Appeal allowed.