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PETITIONER: D.K. AGARWAL

       Vs.

RESPONDENT: HIGH COURT OF JUDICATURE AT ALLAHABAD

DATE OF JUDGMENT11/05/1988

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) MISRA RANGNATH

CITATION:  1988 AIR 1403            1988 SCR  Supl. (1) 317  1988 SCC  (3) 764        JT 1988 (2)   465  1988 SCALE  (1)1043

ACT:      U.P. Higher  Judicial Service Rules, 1975: Rules 4B and 27-Judicial    officer-Adverse     remarks    against-Before communication to  judicial officer-To be placed before Chief Justice-Member   of   higher   judicial   service-Grant   of selection/super     time     scale-Within     administrative jurisdiction of  High Court-Interference  by Court  does not mean granting  relief but  referring the matter back to High Court for reconsideration.      Constitution of  India, 1950-Article  32-Administrative jurisdiction of  High Court-When  and in  what circumstances can the  Supreme Court  interfere though  ordinarily it does not.

HEADNOTE:      In April,  1986, the Selection Committee constituted by the Chief  Justice of  Allahabad High  Court recommended the grant of  super-time scale to the appellant, a member of the U.P. Higher  Judicial Services,  under Rule  27A of the U.P. Higher Judicial  Services Rules, 1975. The Full Court of the High Court  considered the  recommendation on two occasions, but  no   decision  could   be  taken   as  each   time  the Administrative Judge  made certain  new allegations  against the appellant.  Finally, on January 17, 1987, the Full Court found the  appellant unfit  for a  post  in  the  super-time scale.  On   the  eve   of  the   Full  Court   Meeting  the Administrative Judge  was stated  to have  written a  secret letter to the Chief Justice.      Aggrieved, the  appellant filed  a writ petition before the  Division   Bench.  Meanwhile,   the  appellant  made  a representation to  the High Court on its Administrative side for reconsideration  of the  resolution of  the Full  Court. While no decision was taken by the Full Court at its meeting held on  May 16, 1987, an adverse entry for the year 1986-87 was recorded  by the Administrative Judge. The Chief Justice enquired into the allegations contained in the adverse entry and found that the allegations had no foundation whatsoever. He recorded in his minutes that he regarded the appellant as a very  good,  able  and  competent  administrator  with  an unblemished integrity. 318

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    The Division  Bench, after  noticing the remarks of the Chief Justice, quashed the resolution of the Full Court, and referred  back   the  matter   to   the   Full   Court   for reconsideration. It  also directed  that  the  appellant  be given an  opportunity of  explaining  the  imputations  made against him  in the  letter written  by  the  Administrative Judge on  the eve  of the Full Court meeting! of January 17, 1988.      Dissatisfied with  the above  decision,  the  appellant filed an appeal by special leave in this Court.      Meanwhile, the  Full  Court  at  its  meeting  held  on February 20,  1988, again rejected the recommendation of the Selection Committee for the grant of super-time scale to the appellant.      Allowing the appeal by special leave, ^      HELD: 1.1  Whether a  member  of  the  Higher  Judicial Service should  be granted the selection grade or the super- time scale is a matter exclusively within the administrative jurisdiction  of   the  High  Court.  This  Court  will  not ordinarily interfere  with any decision of the High Court in such a  matter. However, if the High Court acts in violation of any  rule framed  by it  or of  the principles of natural justice or  comes  to  any  finding  not  supported  by  any reliable material,  this Court has to examine the matter for ends of justice. But, interference does not mean granting of relief which  the High  Court is  entrusted to  grant in its administrative jurisdiction. The Court will ordinarily refer back the  matter for  reconsideration  of  the  High  Court. [322F-H]      However, in  the instant  case ends  of  justice  would require interference  by disposing  of the  matter  finally, without referring it again to the High Court. [323A]      1.2 Proviso  to Rule  4(B) of  the U.P. Higher Judicial Service Rules  requires that  before an  adverse  remark  is communicated to  the concerned  judicial officer; it must be placed before  the Chief  Justice. By necessary implication, therefore,  the  rule  requires  concurrence  of  the  Chief Justice for taking necessary action on the adverse remark by communicating to the judicial officer concerned. [324A-B]      In the instant case, although the Chief Justice did not agree  with   the  adverse  remarks,  action  was  taken  by communicating them  to the  appellant in  utter violation of the proviso  to Rule 4B and also in disregard of the minutes of enquiry of the Chief Justice. [324B-C] 319      The appellant  had denied  the allegations contained in the letter  of the  Administrative Judge  but no attempt was made by  the Full  Court to have the comments of the retired Judge  who   orally  made   the  allegations.  Further,  the allegations which  were made  from time  to time against the appellant resulting  in the postponement of consideration by the Full Court were all found to be untrue. [324C-D]      An enquiry  was made  by  the  Chief  Justice  and  the allegations contained  in the adverse entry for 1986-87 have been found  to be  without  foundation.  Indeed,  the  Chief Justice recorded  that he  regarded the  appellant as a very good, able  and competent  administrator with an unblemished integrity. [323E-F]      Therefore, in  the absence of any material on record to form the  foundation in  support of  the allegations  and in view of the minutes of the Chief Justice, the Full Court was not at  all justified in acting on the allegations contained in the  letter of the Administrative Judge and depriving the appellant of the grant of super-time scale. [323F]

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    The appellant  was, therefore, entitled to a posting in the supertime scale. Since the appellant has already retired he shall  be paid  the monetary  benefit  with  effect  from January 1, 1987 and his pension suitably altered. [324F-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1875 of 1988.      From the  Judgment and  order dated  l0.12.1987 of  the Allahabad High Court in Civil Misc. Writ No. 4434 of 1987.      S N.  Kacker, Gobind  Dass, E.C.  Agarwala, Ms. Purnima Bhatt and V.K. Pandita for the Appellant.      K. Parasaran,  Attorney  General  (Not  Present)  Gopal Subramanium and Mrs. S. Dikshit for the Respondents.      The Judgment of the Court was delivered by      DUTT J.  After hearing  the  learned  Counsel  for  the parties, we  grant special  leave and,  as full and complete submissions have  been made,  we proceed  to dispose  of the appeal on merits.      The only  question that  is involved  in this appeal is whether the 320 appellant D.K.  Agarwal, who  was a  member  of  the  Higher Judicial Service under the State of U.P., to be precise, the District and  Sessions Judge,  Gonda, and  since retired  on February 29, 1985, was entitled to the super-time scale.      The appellant was appointed to the post of District and Sessions Judge  on October  31, 1983.  In or about December. 1985, the  Selection  Committee  constituted  by  the  Chief Justice of  the Allahabad High Court and consisting of three Judges of  that Court  recommended the  grant  of  selection grade to  the appellant  on the  basis of  merit as required under Rule  27 of  the U.P.  Higher Judicial  Service rules, 1975, hereinafter referred to as ’the Rules’. The Full Court approved the  recommendation for  the grant of the selection grade to  the appellant  and granted  the same  to him  with retrospective effect from November 1, 1983.      In April,  1986 the Selection Committee recommended for the grant  of super-time  scale to  the appellant under Rule 27A of  the Rules It appears that the said recommendation of the Selection Committee came up for consideration before the Full Court  on two  occasions, but  the Full Court could not take any  decision as each time K.N. Misra, J., who was then the  Administrative  Judge,  made  certain  new  allegations against the  appellant.  On  January  17,  1987,  again  the recommendation  of  the  Selection  Committee  came  up  for consideration before  the Full  Court for the third time. On that day,  the Full  Court found  the appellant  unfit for a post in the super-time scale as recommended by the Selection Committee. It,  however, transpired  that just on the eve of the Full Court Meeting held on January 17, 1987, S.K. Dhaon, J., who  was then  the Administrative  Judge, wrote a secret letter to  the Chief  Justice  which  will  be  referred  to presently.      Being aggrieved  by the  decision  of  the  Full  Court turning down  the recommendation of the Selection Committee, the appellant  filed a writ petition before a Division Bench of the  High Court During the pendency of the writ petition, the appellant made a representation to the High Court on its Administrative  Side   on  April   13,  1987   praying   for reconsideration of  the resolution  of the  Full Court dated January 17,  1987. While  no decision  was taken by the Full Court at  the meeting held on May 16. 1987, an adverse entry

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for the year 1986-87 was recorded by S.K. Dhaon, J. On July, 9 1987 as follows:           "He  creates   trouble.  He  fomented  a  conflict           between the members of the Bar and the subordinate           staff of the courts 321           in Kanpur  Nagar which  ultimately resulted in the           transfer  of  Sri  Arjan  Dev  Mahajan,  the  then           District Judge,  Kanpur Nagar.  This was done with           an  ulterior   motive.  He   also  instigated  the           subordinate staff of the courts in Kanpur Dehat to           make agitations  from time to time on the question           of bifurcation  of the staff between the courts at           Kanpur Nagar and Kanpur Dehat.                His integrity  too is  highly doubtful, hence           not certified. His work and conduct should be kept           under constant gaze .      It so happened that the Chief Justice enquired into the allegations contained  in  the  adverse  entry.  After  such enquiry, the Chief Justice, as would appear from his minutes dated July  14, 1987,  found that  the  allegations  had  no foundation whatsoever and observed as follows:           "I find  from the  Character Roll entries that Sri           Agarwal had  been given  remarks  and  praise,  as           District Judge,  Gonda, in  the years  1983-84 and           1984-85 and of course not much expression has been           given in  the entry  of  1985-86  as  the  Hon’ble           Administrative Judge  had no  occasion to  see his           work.  The   entry  doubting   the  integrity  and           involvement of  Sri Agarwal  in the Kanpur dispute           that had  arisen in  1986 obviously  does not find           support, more so, because it was given on 9.7.1987           on the  eve of  Full Court Meeting scheduled to be           held  on  10.7.1987.  I  do  not  agree  with  the           assessment as I regard Sri Agarwal as a very good,           able   and   competent   administrator   with   an           unblemished integrity."      In the  earlier part  of his minutes, the learned Chief Justice stated as follows:           "The members  of the  Bar informed that their view           about the integrity and conduct of Sri Agarwal had           already been  expressed by  the President,  Kanpur           Bar Association,  ....... A  copy  of  the  annual           Magazine  "Kanpur  Bar  Association,  Kanpur"  was           given  to   him  wherein   I  find  the  following           observations:                "I will  be failing in my pious obligation if                I do  not extend  my heartfelt  gratitude and                thanks to Mr. K.K. 322           Chaubey, our most affectionate friend, philosopher           and guide,  and to Mr. D.K. Agarwal, a most compe-           tent and  efficient administrator,  who has helped           us a  lot to create cordial atmosphere between Bar           and Bench."      The Division  Bench of  the High  Court in its judgment dated December  l0, 1987,  noticed the  remarks of the Chief Justice about  the appellant  as made  by  him  in-his  said minutes dated  July 14, 1987. The Division Bench quashed the resolution dated  January 17,  1987, of  the Full  Court and directed that an opportunity should be given by the Court to the appellant of explaining the imputations made against him by the  Administrative Judge in his letter sent to the Chief Justice just  on the  eve of  the Full Court Meeting held on January 17,  1987. Further, it was directed that the case of

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the appellant  for appointment to a post in super-time scale should be  reconsidered by  the Court  at a  very early date keeping in  view the  fact that  the appellant was to retire from service in February, 1988.      As the  Division Bench  did not  grant  the  super-time scale to  the appellant, but referred the matter back to the Full Court  for reconsideration  of the  same, the appellant filed the present appeal.      During the  pendency of  the appeal  in this Court, the Full Court  at its  meeting held on February 20, 1988, again rejected the  recommendation of  the Selection Committee for the grant of super-time scale to the appellant.      The question  that  arises  for  our  consideration  is whether the  appellant, who  has since retired from service, was entitled  to the super-time scale. There can be no doubt that whether  a member of the Higher Judicial Service should be granted  the selection grade or the super-time scale is a matter exclusively within the administrative jurisdiction of the High  Court. This  Court will  not ordinarily  interfere with any  decision of  the High Court in such a matter. This is, however, subject to the exception that if in considering whether a  member of  the Higher  Judicial Service should be granted the  super-time scale or not, the High Court acts in violation of  any rule  framed by it or of the principles of natural justice or comes to any finding not supported by any reliable material,  this Court has to examine the matter for ends of justice. But, interference does not mean granting of the relief which the High Court is entrusted to grant in its administrative  jurisdiction.   All  that   the  Court  will ordinarily do is to refer back the matter for 323 reconsideration of  the High  Court. In  the  instant  case, however, we  consider that  for ends  of justice  we  should interfere by  disposing of  the matter  finally, that  is to say, without  referring it  again to  the High Court for the reasons stated hereafter.      The letter  of Dhaon,  J. referred  to above was handed over to  the Chief  Justice by  Dhaon, J. just on the eve of the Full  Court Meeting  held on  January 17,  1987. In that letter, certain  serious allegations  were made by Dhaon, J. against the  appellant solely on the basis of what a retired Judge of the High Court had orally reported to Misra, J. The allegations  contained   in  the   said  letter   were   not communicated to  the appellant before the Full Court Meeting on January  17, 1987,  but the same were communicated to him before the Full Court reconsidered the matter in the meeting held on  February 20,  1988 pursuant  to the judgment of the Division Bench.  The appellant  had denied  the  allegations made in  the said  letter against  him. Upon such denial, no attempt was  made by  the Full Court to have the comments of the retired  Judge, who  had  orally  made  the  allegations against the  appellant. There  is, therefore, no material on record to  form the foundation in support of the allegations and the Full Court, in our opinion, was not at all justified in acting  on the  allegations contained  in the  letter  of Dhaon, J.      We may  now deal with the adverse entry of 1986-87 made by the  Administrative Judge  on July  9, 1987  against  the appellant. It  has been  already noticed that an enquiry was made by  the  learned  Chief  Justice  and  the  allegations contained in the adverse entry have been found to be without foundation. Indeed,  the learned Chief Justice recorded that he regarded  Sri Agarwal  as a very good, able and competent administrator with  an unblemished integrity. In view of the minutes of the learned Chief Justice, the Full Court was not

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justified in  depriving the appellant of the grant of super- time scale.  Apart from  that, the  adverse entry should not have been  communicated to the appellant for his explanation on the  face of  the minutes  of the  Chief Justice. In this connection, we  may refer to the proviso to Rule 4(B) of the Rules which inter alia. reads as follows:           "................................................           Provided that  adverse remarks  or strictures made           by Administrative  Judges about  the judicial work           and  conduct   of  any   officer  of   subordinate           judiciary will  be placed before the Chief Justice           before issue. 324      The rule  requires that  before an  adverse  remark  is communicated to  the concerned  judicial officer, it must be placed before  the Chief  Justice and,  in our  opinion,  by necessary implication,  the rule requires concurrence of the Chief Justice  for taking  action on  the adverse  remark by communicating the same to the judicial officer concerned. In the instant  case, the adverse entry was communicated to the appellant even  on the  face of  the minutes  of the learned Chief Justice.  In other  words, although  the learned Chief Justice did  not agree  with the adverse remarks, yet action was taken  on the  same by  communicating the  same  to  the appellant. This  was done  in utter violation of the proviso to Rule  4B and  also in disregard of the minutes of enquiry of the  learned Chief Justice. In this connection, it may be mentioned that  the allegations which were made from time to time against  the appellant resulting in the postponement of consideration by the Full Court of the recommendation of the Selection Committee for the grant of super-time scale to the appellant, were all found to be untrue. We may mention about one instance when the Full Court could not consider the case of the  appellant for  the grant  of super-time scale at its meeting held  on May 17, 1986 because an oral accusation was made by  the learned Administrative Judge that the appellant and his son were involved in smuggling activity while posted as the  District Judge,  Gonda, in the year 1985. The matter was referred  to the  District Magistrate, Gonda, who by his letter dated  May 31,  1986, informed the High Court that no such incident,  as referred  to him,  had come to his notice wherein Sri  Agarwal or  his son might have been apprehended while carrying smuggled goods. Further, it was stated by him that he had verified from the concerned records of different Police Stations  which also showed that there was no mention of any  incident involving  Sri Agarwal or his son in such a matter. Thus,  the allegations made against the appellant or his son were baseless.      After considering the above facts and circumstances, we are satisfied  that the  appellant was entitled to a posting in the  super-time scale.  We modify  the  judgment  of  the Division Bench  and direct that as the appellant has already retired, he shall be paid the monetary benefit of the super- time scale  with effect  from January  1, 1987.  His pension shall be  suitably altered  on that basis. The payment shall be made within two months from today.      The appeal is allowed. There will, however, be no order as to costs. N.P.V.                                       Appeal allowed. 325