http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13  

PETITIONER: MADAN MOHAN CHOUDHARY

       Vs.

RESPONDENT: THE STATE OF BIHAR AND ORS.

DATE OF JUDGMENT:       12/02/1999

BENCH: S.Saghir Ahmad & M. Jagannadha Rao..

JUDGMENT:

S. Saghir Ahmad.

Leave granted.       The  recommendation of the High Court on the basis  of which  the appellant, who held the rank of Addl.  District & Sessions  Judge,  was  compulsorily  retired  from  service, exhibits  the tragic fact that the highest judicial body  of the State which abhors anything done contrary to the rule of law or done in a whimsical manner or arbitrarily, can itself act  in that manner on the administrative side.  Still,  the plea  that High Court Judges suffer from "split personality" cannot  be accepted for the pleasant fact that though on the administrative  side  they might have had acted as  ordinary bureaucrat,  once  they don the robes they forget all  their previous  associations and connections.  The  transformation is  so  complete and real that even though  they  themselves were  part of the decision making process, they quash  their own  administrative decisions in exercise of their power  of judicial   review   and  thus   maintain  the  majesty   and independence  of  the Indian judiciary in which  the  people have  always reposed tremendous faith.  In the instant case, however,  the order of compulsory retirement dated  2.8.1997 passed  by  the  State  Government   on  the  High   Court’s recommendation has been upheld and it has fallen to our lot, in  this  appeal, to scrutinise the validity of this  order. Before  coming  to the merits of the case, we may  scan  the service  record  of  the appellant who joined  the  Judicial Service  as Temporary Munsif on 15.5.1975.  He was confirmed on  that  post on 8.2.1980 and was promoted to the  rank  of Sub-Judge  with effect from 16.5.1985.  He was confirmed  as Sub-Judge  on 19.1.1988.  The appellant was promoted to  the Superior  Judicial Service in 1991 and was put to  officiate as  Addl.   District  &  Sessions  Judge  with  effect  from 15.7.1991.   He  was  not, till the date of  his  compulsory retirement,  confirmed  on  that post.  The  character  roll entries,  as  recorded  by District Judges, under  whom  the appellant  had  worked,  are  as set  out  below:-  "1975-76 (Distt.Muzaffarpur)  -  Quality  of  work  satisfactory  and quantity   capable  of  improvement.    Relation  with   Bar satisfactory.  1976-77 (Distt.Muzaffarpur) - Quality of work satisfactory  and  quantity fair.  Relation with  Bar  fair. 1977-78  (Distt.  Gaya) - He is intelligent.  His  Judgments are of average quality.  Outturn is satisfactory.  1978-79 - No  remarks.   1979-80 (Distt.  Munger) - On the  whole  his work  and conduct is average.  Relationship with the members of  the Bar and the Judicial Officers has been satisfactory.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13  

He  is  laborious  and painstaking.  1980-81 -  No  remarks. 1981-82  (Distt.   Palamau) - Intelligent and hard  working. Writes  good Judgments.  Enjoys good relation of  integrity. 1982-83  (Distt.   Palamau)  -  Carries  a  good  reputation regarding  his  integrity.   1983-84   (Distt.   Palamau)  - Shaping    well    as   a   Judicial    Officer.     1984-85 (Distt.Hazaribagh)  -  He has satisfactory knowledge of  law and  procedure.  He is industrious and prompt in disposal of cases.   He  is an efficient Officer.  He has  maintained  a reputation  for  honesty  and   impartiality.   An   average Officer.   Relation with Bar, colleagues and staff  cordial. 1985-86   (Distt.   Aurangabad)  -   Knowledge  of  law  and procedure satisfactory.  He is industrious and prompt in the disposal  of  cases.   He is an efficient Officer.   He  has maintained  a reputation for honesty and impartiality during the  period.   As  incharge of the Nazarat  and  Account  he requires  to exercise more effective control.  Satisfactory. Maintains good relation with the other Judicial Officers and the  Bar.   1986-87 (Distt.  Aurangabad) - Knowledge of  law and procedure is satisfactory.  He is industrious and prompt in  the  disposal  of  cases.   Disposal  of  the  cases  is satisfactory.    He  is  an   efficient  Officer.He   writes well-discussed  judgments  & orders, both Civil &  Criminal. He  enjoys good reputation as an honest & impartial Officer. Good.He  maintains  cordial  relation  with  other  judicial Officer  &  Bar.  1987-88 (Distt.Aurangabad) - Knowledge  of law  and  procedure  satisfactory.  He  is  industrious  and prompt in the disposal of the cases.  Disposal satisfactory. He  is  an  efficient  Officer.   None  made  any  complaint regarding  his  honesty  and impartiality.  He  enjoys  good reputation    with   respect   to    his    integrity    and laborious.Defects, if any:- No.  Good.  He maintains cordial relation  with  judicial Officers and Bar.  1988-89  (Distt. Aurangabad)  -  His  knowledge  of   law  and  procedure  is satisfactory.   He is industrious, an efficient Officer  and prompt  in the disposal of cases.  He enjoys good reputation as  an  honest  and  impartial   Officer.   He  is  fit  for appointment  as C.J.M.  Defects - Nil.  Good.  He  maintains cordial relation with other judicial Officer, staff and Bar. 1989-90 (Distt.  Begusarai) - Knowledge of law and procedure satisfactory.   He is industrious and prompt in the disposal of cases.  His supervision of distribution of business among and  his control over the subordinate Courts good.  He is an efficient  Officer.   He  has maintained  a  reputation  for honesty  and  impartiality.   Defects, if any  -  No.   Very frequently  he  loses his temper in the court but he  writes good judgment and order.  1990-91 (Distt.  Begusarai) - Very sound knowledge of law and procedure.  He is industrious and prompt  in  the disposal of cases.  His supervision  of  the distribution  of  business  among and his control  over  the subordinate  Court  good.  He is an efficient  officer.   He enjoys  confidence of Bar and litigants.  He is a very  good officer.  Has grip and control over office and Subordinates. Relationship with Bar and Officers cordial."

     Categorisation  made  by the Inspecting Judges of  the High Court are as follows:-

     "1984  - B (average) by Hon’ble Abhiram Singh 1987 - B (satisfactory)  by  Hon’ble  R.C.P.  Sinha 1988  -  Good  by Hon’ble S.Roy 1990 - B Plus by Hon’ble B.K.  Roy"

     On  14th of November, 1995 while working as District & Sessions  Judge  Incharge, Madhubani, the appellant  granted

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13  

anticipatory bail to certain accused in a case under Section 307 IPC.  The bail order was challenged in the High Court in Criminal  Miscellaneous Case No.18207 of 1995 which came  up before  a  learned  Judge of the High Court who  passed  the following order on 26.3.1996 :-

     "The  allegations as against opposite parties no.2 and 3  appear to be more serious than against the rest, although notice  was  issued to all the opposite parties, it  appears from  the  service report that the notice is deemed to  have been  validly  served  as  the  concerned  opposite  parties refused to grant the receipt.  In my opinion, the petitioner should  take  fresh  steps  for service  of  notice  against opposite parties no.2 and 3 alone.

     Let  requisites etc.  under registered cover with  A/D be   filed   by  Monday(1.4.1996),    failing   which   this application,  as  against  the concerned  opposite  parties, shall stand rejected without further reference to a Bench.

     In the meantime, the office is directed to put up this matter  on  Administrative side so that the conduct  of  the Officer,  who  granted anticipatory bail, may  be  examined. The office will also disclose the name of the Sessions Judge I/C, who passed the order on 14.11.1995.

     This  case was finally disposed of by the same learned Judge  on 22.7.1996 and the anticipatory bail, granted  to two  of  the accused, was set aside.  This  order  contains, inter alia, th e following observations:-

        "From the order of the Sessions Judge incharge          it  appears that he took into account the fact          that  with respect to the occurrence a counter          case  had also been instituted and, therefore,          ‘the  chances  of false implication cannot  be          ruled  out.’  Considering  the fact  that  two          persons  on  the side of the  prosecution  had          sustained  grievous injuries on vital parts of          the body, I am unable to understand the logic.          Even  if  there was a counter version  of  the          occurrence,   the  court   below  should  have          considered  the  manner of occurrence and  the          fact  that the prosecution party had sustained          grievous  injuries which cannot be said to  be          manufactured or self- inflicted, before coming          to the final conclusion.  Such a consideration          was  all  the  more   necessary  because   the          opposite  party were seeking the privi lege of          pre-arrest  bail.   It does not give cor  rect          message  to  the public if persons accused  of          causing  grievious injuries on vital parts  of          the  body do noteven surrender to custody  and          are  granted  anticipatory ba il.  E venif  in          the mat ter of cancellation of bail, the court          shoul  d not make distinction between the anti          cipatory  bail  and regular  bail;nevertheless          ifthe superior court find that the exercise of          discretion  itself was not proper,  subverting          the  people’s  faith in the administration  of          criminal  justice, it is its duty to intervene          and  set aright the wrong.  Besides, as stated          above, there are also a llegati ons that the o          pposite party have been holding out threats to          the  petitioner,  his family members  and  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13  

        prosecution  witnesses and the attitude of the          police is not helpful." (Emphasis Supplied)

In  pursuance  of the direction issued by the learned Judge,  the office  put  up  a  note which was  considered  by  the  Standing Committee on 6.11.1996 and the following Resolution was adopted:-

"Agenda Decision

To  consider the Order dated Having Considered the 26.3.96 passed in  Crl.Misc.  office notes concerning Case No.  18207/95 against the  officer.   the Sessions Judge I/C, Madhubani.   (XIX-32-96). It  is resolved that the office shall put up necessary notes  for the compulsory up necessay notes for the compulsory retirement of Sh.   Madan Mohan Choudhary Addl Sessions Judge, Madhubani, under Rule 74 of the Bihar Service Code."

The   office,  thereafter,  prepared   the  necessary  note   for compulsory retirement of the appellant under Rule 74 of the Bihar Service Code.  This note was considered by the Standing Committee in  its  meeting held on 21.11.1996 and the following  Resolution was adopted:-

"Agenda Decision

To  consider the desirability Having considered of taking  action under  Rule  the  entire  service 74 of the  Bihar  Service  Code records  of each of against a few officers of the the following 4 Subordinate  Judiciary.   officers  :  (XIX-31-96)  1.   Sh.Madan Mohan   Choudhary,Addl.   Distt.   &  Sess.   Judge,   Madhubani.

                                  It  is resolved that it is                                 not in the public interest to                                 retain  their   services  any                                 longer   and   they   should,                                 therefore,    be      retired                                 compulsorily  from    service                                 under  Rule 74(b)(ii) of  the                                 Bihar  Ser  vice  Code.   The                                 above   decision  be   placed                                 meeting  before  the  of  the                                 Full  Court, scheduled to  be                                 held  on 30th November,  1996                                 as per Rule 3(x) of Chapter-I                                 Part-I  of  the Rules of  the                                 High  Court at Patna  instead                                 of getting it circullated."

     A  Full  Court meeting was convened on 30.11.1996  and the  Resolution  of the Standing above) was  approved.   The relevant  extract  of  the Committee (extracted  minutes  of theFull Court meeting is reproduced below:-

     "Item  No.7:- To consider the decision of the Standing Committee   regarding  compulsory   retirement  of  Judicial Officers under Rule 74 of the Bihar Service Code, 1952.

     The  decision of the Standing Committee meeting  dated 21.11.96  regarding  compulsory retirement of the  following JudicialOfficers  under Rule 74(b) of the  BiharServiceCode, is  considered  by the Full Court and the same is  approved.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13  

1.   Sri  Madan  Mohan Choudhary,  Addl.Distt.   &  Sessions Judge, Madhubani.

     The  State  Government may be requested to give  three months  pay in advance to the aforesaid officers recommended for  compulsory retirement in lieu ofthree months notice  to be given to them.

     It  is  further resolved that the District &  Sessions Judges  concerned  be  directed  to  relieve  the  aforesaid officers of all their Judicial works."

     The  State Government, acting on the recommendation of the  High  Court,  compulsorily retired the  appellant  from service by order dated 2.8.1997.

     It  may be mentioned that there were no remarks  given by the High Court to the appellant in his character roll for theyears  1991-92,  1992-93 and 1993- 94 but  these  remarks were  given  all at one time and he was categorised  as  "C" Grade    Officer.    Regarding    these    remark   s,   the oppositeparties in the counter affidavit say as under:-

     "Thereafter,  the petitioner was awarded Grade ‘C’  in his C.R.  for 3 years con secutively and 3 the assessment of petitioner’s  C.R.   for  years at one go is not  a  solitar ycase  but the same practice wasfollowed in the case of  all the  Judicial Officers.  The placing of petitioner in  Grade ‘C’  categorymeans  below average which was communicated  to him  by  the  Registrar  General  by  letter  No.9560  dated 29.11.1996."

     When  these remarks were communicated to the appellant on 29.11.1996, he filed a representation on 20.2.1997 before the High Court andprayed that his categorisation as "C"Grade Officer  may be set aside.  This representation was rejected by the High Court on 12.12.1997.

     The  order  of compulsory retirement, as  pointed  out above,  was  challenged  before  the  HighCourt  in  a  Writ Petition filed under Article 226 of the Constitution but the pleas  raised by the appellant were turned down and the Writ Petition was dismissed.

     Learned  counselfor theappellant hascontended that the appellant was an honest, hardworking and sincere officer who had  not,  at  any time, been given any adverse  remark  and hisintegrity, at no stage,was ever doubted.  It is contended that  an  order passed by him on the judicial side by  which bail  was granted to certain accused in a case under Section 307  IPC  specially when there was a cross case also,  could not  be made the basis of an order of compulsory retirement. It is also contended that there was no material on the basis of   which  the  High   Court  could  recommend   compulsory retirement.   The  whole  decision  making  process,  it  is claimed, was conducted in an arbitrary manner.

     Learned counselappearing on behalf ofthe High Court as also  the State of Bihar have contended that the High  Court having  resolved to vehemently had compu lsorily retire  the takena  bona  fide  decision   onan  overall  assessment  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13  

appellant  in  the  work and conduct of the  appellant  and, therefore, public it wasnot open to judicial scrutiny.

     We  may,at  this stage, considerthe role of  the  High Courts inthe matter of State Judicial Services.

     The  Indian  Constitution provides for an  independent judiciary  in  every State by makinga provision for  a  High Court being constitutedfor each State.  The Constitution has conferredvery wide powers and extensive jurisdiction on each High  Court, including the power of superintendence over all the  courts and tribunals in the territory over which it has jurisdiction.   Undoubtedly, one of the mostimportant  wings of  the judiciary comprises of the subordinate courts as  it is in these courts that the judiciary comes in close contact with  the people.  Inorder to secure the independence of the subordinate  judiciary  from the Executive, Articles 233  to 237 have been placed in the Constitution.  Article 233 deals with  the  appointment of District Judges and provides  that appointments,  posting and promotions of District Judges  in any State shall be made by the Governor in consultation with the  High Court, exercising jurisdiction in relation to such State.   The  word  "District  Judge" has  been  defined  in Article 236(a) as under :

         "The expression "district judge" includes judge of           a  city  civil Court, additional  district  judge,           joint  district  judge, assistant district  judge,           chief   judge  of  a   small  cause  Court,  chief           presidency magistrate, additional chief presidency           magistrate,  sessions  judge, additional  sessions           judge and assistant session judge."

     The  expression  "judicial  service" has  been  defiin clause (b) of Article 236 which is reproduced below:

     "The  expression"judicial  service"  means  a  service consisting  exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge."

     Article 234 provides as under:-

     "234.  Recruitment of persons other district judges to the  judicial  service.- Appointments of persons other  than district  judges to the judicial service of a State shall be made  by the Governor of the State in accordance with  rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction inrelation to such State."

     Article  237 gives power to the Governor to apply,  by public  Notification, the provisions of this Chapter and the Rules   made  thereunder  to  any   class  or   classes   of Magistrates.   Once  such  a  Notification  is  issued,  the provisions  of  Articles  234,  235   and  236  will  become applicable  to  those  Magistrates  and  they  would  become members  of the ‘judicial service’ under the control of  the High Court.

     In  order  to ensure their independence,  the  control over  the  subordinate  courts has been vested in  the  High Court under Article 235 which provides as under :

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13  

         "Control  over  subrodinate Courts -- The  control           over   district  Courts   and  Courts  subordinate           thereto  including  the posting and promotion  of,           and  the  grant of leave to, persons belonging  to           the  judicial  service of a State and holding  any           post  inferior to the post of district judge shall           be  vested in the High Court, but nothing in  this           article shall be construed as taking away from any           such  person any right of appeal which he may have           under  the  law regulating the conditions  of  his           service  or as authorising the High Court to  deal           with  him  otherwise than in accordance  with  the           conditions  of  his service prescribed under  such           law."

     Under  this Article, the High Court’s control over the subordinate  judiciary is comprehensive and over  avarietyof matters,  inclu  ding and grant of leave.   The  threewords, namely,   "posting",  posting,promotion    "promotion"   and "grantof  leave", usedin this Article, are only illustrative in character anddo not limit the extent of control exercised by  the  High  Courtover  the officers  of  the  subordinate judiciary.

     It  is now well-settled by a catena of decisions (See, for  example, Mohammad Ghouse vs.  State of Andhra, AIR 1957 SC  246  = 1957 SCR 414 and Chief Justice of Andhra  Pradesh vs.   L.V.A.  Dikshitulu, AIR 1979SC 193= 1979 (1) SCR 26  = (1979)  3 SCC 34) that the expression "control", in  Article 235 of the Constitution, includes "Disciplinary Control".

     Transfers,  promotions  and   confirmations  including transfer of District Judges or the recall of District Judges posted   on   ex-cadre  post  or   on   deputation   or   on administrative   post  etc.   etc.   is  also   within   the administrative control of the High Court.  So also premature and  compulsory  retirement is also within the "control"  of the High Court.

     From the scheme of the Constitution, as set out above, it  will  be  seen  thatthoughthe  officers  of  subordinate judiciary are basically and essentially Government servants, their  whole service is placed under the control of the High Court  and the Governor cannot make any appointment or  take any  disciplinary  action  including action for  removal  or compulsory  retirement unless the High Court is  "CONSULTED" as required by the constitutional impact of boththe Articles 233 and 234 and the "control" of the High Court indicated in Article 235.

     The  word "consult" in its "to ask advice" or "to take counsel".   The  Governor  is ordin ary meaning  means  thus a"consultor"  andthe  High Court is the "consultee"  whichis treated  as an expert body in all matters of action, service including    ap    pointments,    disciplinary    comuplsory retirementetc.   relating to State Judicial Services.  Since theGovernor cannotact on his own unless he has consulted the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13  

High  Court,  the Constitution has conferred upon  the  High Court  a sacred and noble duty to give the best of advice or opinion  to  the  Governor;  an advice  tendered  after  due deliberation  and  after taking into consideration  all  the relevant material and record relating to the problemon which consultation  is  made or advice is sought by the  Governor. It   is,  therefore,  essentially  a  matter  of  trust  and confidence between the Governor andthe High Court.  The High Court  cannot  act arbitrarily in giving its opinion to  the Governor or else it will bea betrayal of that trust.  If the                            I advice  is  not  supportable by any material on  record  and isarbitrary in character, it may not have any binding value.

     It  has  already  been  pointed out  by  thisCourt  in Registrar, High Court of Madras vs.  R.  Rajiah, AIR 1988 SC 1388  =  (1988)  3 SCC 211 = 1988 Supp.  (1)  SCR  332  that though  the High Court, in its administrative  jurisdiction, has the power to recommend compulsory retirement of a member of  the Judicial Service in accordance with the rules framed in  that regard, it cannot act arbitrarily and there has  to be  material  to  come to a decision that  the  officer  has outlived  his utility.  It was also pointed out in  thiscase that  the  High Court while exercising its power of  control over  the  subordinate judiciary is under  a  constitutional obligation to guide and protect judicial officers from being harassed  or  annoyed  by trifling complaints r  elating  to judicia  l  orders  sothat the and Officers ma  y  discharge their  duties  honestly  independently  unconcerned  by  the ill-conceived  or motivated complaints,made by  unscrupulous lawyers and litigants.

     In M.M.  Gupta vs.  State of J & K, AIR 1982 SC 1579 = normally,  as  a rule, the High Court’s recommendations  for the  appointment  of a District Judge should be accepted  by the  State  Government  and the Governor should act  on  the same.   If in any particular case, the State Government  for good  and  weighty reasons find it difficult to  accept  the recommendations,  it  should communicate its views  to,  and have  complete  and  effective consultation with,  the  High Court.   It was also pointed out that there can be no  doubt that  if  the High Court is convinced that the  Government’s objection   are  for  good   reasons,  it  will  undoubtedly reconsider its earlier recommendation.  Efficient and proper judicial  administration being the main object, boththe High Court and the State Government must necessarily approach the question in a detached manner.

     Again  in  State of Kerala vs.  A.  Lakshmikutty,  AIR 1987  SC  331  = 1987 (1) SCR 136 = (1986) 4 SCC  632,  this Court  pointed  out that the duty ofthe Governor to  consult the  High  Court  in the appointment of District  Judges  is integrated  with the exerciseof his power;  he must exercise it  in the manner provided by Article 233(1) or not at  all. Normally,  the  High  Court’s  recommendations  have  to  be accepted by the State Government and the Governor has to act on  the  same  but  if the State Government  for  ‘good  and weighty   reasons’  cannot  agree   with  the  High   Court, itshouldtake  the the High Court into conf idence and  place before it difficulties in actingupon the recommendations.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13  

     Let us now examine the merits ofthe case.

     The  character  roll  entries,   recorded  by  various District  Judges,  havealreadybeen  reproducedby us  in  the earlier  part of the Judgment.  Theremarksgiven by the  High Court  on various occasions have alsobeen set out above.  It has  also  been  found  that there were no  entries  in  the character  roll  of  the appellant for  the  years  1991-92, 1992-93  and  1993-94.   The entries for  these  years  were recorded  at  one time simultaneously and the appellant  was categorised  as  "C" Grade Officer.  The expression used  by the  High  Court  in the counter affidavit,  filed  in  this Court,  inrelation  to the entries for the  aforesaid  three years  is that they were recorded "at one go".  And, we  may add,  the  Officer was made to go!  The date on which  these entries  were  made is not indicated either  in  theoriginal recordor  in the counter affidavit filed by the respondents. These  were communicated to the appellant on 29.11.1996  and were  considered  by the Full Court on 30.11.1996 but it  is clear  that  these entries wererecorded at a stage when  the Standing  Committee  had  already  made   up  its  mind   to compulsorily  retire  the appellant from service as  it  had directed  the  office, on 06.11.1996, to put up a  note  for compulsory  retirement  of  the appellant.  The  High  Court should  have  considered  that  all  entries  prior  to  his promotion  to Superior Judicial Service were not bad and his integrity  either as amemberof the Inferior Judicial Service or  Superior Judicial Service was never doubted.  The  grant of  anticipatory  bailin  a  case   under  Section  307  IPC particularly  when there wasa cross case could not have been                             I legally  made  the  basis of compulsory  retirement  in  the particular  circumstances of this case.  Whatever might have been  the  feeling  of  learned Judge  who  entertained  and ultimately  allowed  the  the  petition  forcancellation  of bailgranted  appellant, thefact remains that it was an order passed  by the on the judicial sidein all bona fides.  Itmay have  been  a  wrongorder but it was not a  motivated  order based  on  extraneous  considerations.  It was thus  a  case where  there was no material on the basis ofwhich an opinion could  have  been reasonably formed that it would be in  the public  interest  to  retire   the  appellant  from  service prematurely in terms of Rule 74 of the Bihar Service Code.

     The  entries recorded "at one go" for the three years, namely,  1991-92, 1992-93 and 1993-94 could hardly have been taken  into  consideration.  They were communicated  to  the appellant  on  29.11.1996  and on the next day,  namely,  on 30.11.1996,  the Full Court took the decision to retire  him from service without giving any opportunity to him to make a representation  which,  however,  he did make  but  had  the mortification  of  seeing  it  rejected   a  year  later  in December, 1997.

     Learned  counsel for the respondent contended that the entries  for the aforesaid three years cannot be excluded on the  ground  that the appellant was not given  the  adequate chance to represent against those entries.  He referred to a decision  of a Three Judge Bench of this Court in  Baikuntha Nath  Das  vs.  Chief Distt.  Medical Officer  Baripada,  JT 1992 (2) SC 1 = AIR 1992 SC 1020 = 1992 (1) SCR 836 = (1992) 2  SCC  299 and contended that in view of the law laid  down

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13  

therein, the order of case, compul sory retirement, cannotbe legally  assailed particularly as thecharacter passed in the roll  entrieswhich  are  not  even   communi  cated  can  be takeninto  considertion  for purpose of forming  an  instant opinion   for  retiringa  person   compulsorily  in   public interest.  We hardly find any merit inthis submission.

     The   question  relating  to  uncommunicated   adverse entries  has  been  the  subject  matter  ofseveraldecisions municated  of this Court.  In Union of India vs.M.E.  Reddy, AIR  1980 SC 563 = 1980 (1)SCR 736= (1980) 2 SCC 15, it  was laid  down that uncommunicated adverse remarks can be relied upon  while passing an order of compulsory retirement.   But in two subsequent decisions, namely, Brij Mohan Singh Chopra vs.   State of Punjab, AIR 1987 SC 948 = (1987) 2 SCC 188  = 1987  (2)  SCR  583 and Baidyanath Mahapatra vs.   State  of Orissa,  AIR 1989 SC 2218 = 1989 (3) SCR 803 = (1989) 4  SCC 664,  it  was laid down that uncommunicated adverse  entries could  not  be legally relied upon while making an order  of compulsory   retirement.    It  was   also  laid   down   in Baidyanath’s  case  (supra)  that if  a  representation  was pending  against  the adverse remarks, the  adverse  entries against  which the representation is made could not be taken into  consideration  unless  the representation  itself  was considered and disposed of.

     Both these decisions were considered by a Three- Judge Bench  in  Baikuntha  Nath  Das’s   case  (supra)  and  were over-ruled  and  the  following five  principles  were  laid down:-

         "(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           compulsorily.    The  order  is   passed  on   the           subjective satisfaction of the government.

         (iii)  Principles of natural place in the cont ext           of an order of compulsory justice have no judicial           retireme  nt.  This does not mean that  scrutinyis           excluded  altogether.   High Court or  this  Court           would  not exami ne the While the may matter as an           appellate   court,   they    interfereif   theyare           satisfied that the order is passed (a) mala fideor           (b)that  it is based on no evidence or (c)that  it           is  arbitrary  - in the sense that  no  reasonable           II           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           matter  -  of 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13  

         adverse.  If a government servant is promoted to a           higherpost  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  quahsed by a Court merely  on  the           showing  that  while   passing  it  uncommunicated           adverse  remarks were alsotakeninto consideration.           That  circumstance by itself cannot be a basis for           interference."

     This  decision  has  since been followed  in  Posts  & Telegraphs  Board  vs.  C.S.N.  1992 (2) SCR 338 = (1992)  2 SCC  317;   Secretary  to  the Murthy, AIR 1992  SC  1368  = Government  Harijan & Tribal Welfare Department Bhuban eswar vs.  Nityananda Pa ti, AIR 1993 SC 383= (1993) Suppl.  2 SCC 39 1 and Union of Indiavs.  V.P.  Seth, AIR 1994 SC 1261 and cons  idered  by this Court in M.S.  Bindra vs .   Union  of Indiaand  Ors.,  JT  1998 (6) SC 34 = 1998 (5)  Scale  45  = (1998)  7  SCC 310 and again in The State of G ujarat  &Anr. vs.   Suryakant Chunilal Shah, JT 1998 (8) SC 326 = 1998 (6) Scale 393.

     The  fifth  principle  in Baikuntha  Nath  Das’s  case (supra),  which  has  already been extracted  above,  itself contemplates  that the mere circumstance that uncommunicated adverse  remarks  were  taken into consideration  would  not constitute  a  basis  for  interference  with  an  order  of compulsory  retirement.   In  para 32 of the  Judgment,  the learned Judges observed as under:-

     "32.  We m ay not be understood as saying either t hat ad  verse  remarks  need  not be communicated  or  that  the representation  s,  if  any, submitted by  the  gove  rnment servant  (against  such remarks) need not be  considered  or disposed of.  The adverse rem arks o ught to be communicated in  th e normal cour se, as required by the rules/ orders in that  behalf.   Any representation m ade against them  would and  should  also be dealt with i n the normal course,  with reas  onable promptitude.  All that we are saying is that th e  act  i on under F.R.56(j ) (or the rule corresponding  to it)  need not await the disposal or final dis posal of  such representation  or repre sentations, as the case may be.  In some  cases, it may happen that some adverse remarks of  the recent  years  are not communicated or if communicated,  the represent ation received in that behalf are pending c onside ration.  On this account alone, the action under F.R.  56(j) need  not be held back.  There is no reason to presume  that the  Review  Committee or the government, if it  chooses  to take  into consideration such uncommunicated remarks,  would not  be conscious or cognizant of the fact that they are not communicated  to  the government servant and that hewas  not given  an  opportunity  to  explain   or  rebut  the   same. Similarly,  if  any  representation made by  the  government servant  is there, it shall also betakeninto  consideration. We  may  reiterate  that not only the  Review  Committee  is generallycomposed  of  high  and responsible  officers,  the power  is  vested  ingovernment  alone and not  in  a  minor official.  It is unlikely that adverse remarks over a number

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13  

of  years  remain uncommunicated and yet they are  made  the primary  basis  of action.  Such an unlikely  situation,  if indeed  present, may be indicative of malice in law.  We may mention  in  this  connection that the  remedy  provided  by Article  226  of  the Constitution is no less  an  important safeguard.  Even with its well known constraints, the remedy is  an  effective  check  against  mala  fide,  perverse  or arbitrary action."

     (Emphasis supplied)       These  observations indicate that the adverse  remarks if  recorded in an employee’s character roll in the  "normal course",  ought  to  be  communicated  to  him  and  if  any representation  is  made  aginst  those  remarks,  the  said representation  should be disposed of in the "normal course" but  with  promptitude.  It was further emphasised that  the pendency  of  representation against the adverse remarks  or non-disposal  of  that  representation would,  however,  not prevent  the action being taken for compulsory retirement of the  employee  even on the basis of that entry either  under F.R.56(j) or anyprovision equivalent thereto.

     In  the instant case, the adverse remarks, namely, the remarks  for the years 1991-92, 1992-93 and 1993-94 were not recorded  in  the "normal course" but were recorded "at  one go"  and  that too when the Standing Committee of  the  High Court  had already formed an opinion to compulsorily  retire the appellant from service.  The representation made against these  remarks  was  not  dealt  with  promptitude  but  was disposed  of  by the High Court after a long period  of  one year.   These  remarks which were recorded in the  character roll  of the appellant "at one go" and were communicated  to the  appellant  on 29.11.1996, were considered by  the  Full Court   on   30.11.96  which   approved  the   proposal   of compulsorily  retiring  the  appellant  from  service.   The appellant  had  been categorised as "B" plus in 1990 by  Mr. Justice B.K.  Roy.  There was no categorisation for the next three years and when the action for compulsory retirement of the  appellant was initiated by the High Court on the ground that  he  had  granted  anticipatory bail in  a  case  under Section  307  IPC, categorisation for 1991-92,  1992-93  and 1993-94  was done "at one go" which is unreasonable and  not fair.   Moreover,  the compulsory retirement was ordered  in 1996.   What was the appellant’s categorisation for  1994-95 and  1995-96 is not indicated in the original service record placed  before us.  It is on account of these  abnormalities coupled  with other strange circumstances of this case  that we  are  of  the  opinion that  the  categorisation  of  the appellant  as  a  "C" class officer for the  years  1991-92, 1992-93  and 1993-94 could not have been legally taken  into consideration.   If  these remarks are  excluded,  principle (iii) laid down in Baikuntha Nath Das’s case (supra) becomes applicable   immediately   and  the   impugned   action   of compulsorily  retiring the appellant from service cannot but be  termed  as  arbitrary in the sense  that  no  reasonable person  could have come to the conclusion that the appellant had  outlived  his  utility as a Judicial  Officer  and  had become a dead wood which had to be chopped of.

     For  the reasons stated above, the appeal is  allowed. The  judgment  and order dated 22.7.1998 passed by the  High Court  is  set  aside.   The  Writ  Petition  filed  by  the appellant  is allowed and the order of compulsory retirement

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13  

dated 02.08.1997, passed by the State Government, is quashed with  all  consequential benefits to the  appellant.   There will be no order as to costs.