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PETITIONER: J. D. SHRIVASTAVA

       Vs.

RESPONDENT: STATE OF M.P. & OTHERS

DATE OF JUDGMENT24/01/1984

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) REDDY, O. CHINNAPPA (J) MISRA, R.B. (J)

CITATION:  1984 AIR  630            1984 SCR  (2) 466  1984 SCC  (2)   8        1984 SCALE  (1)125  CITATOR INFO :  R          1987 SC 948  (7)  RF         1992 SC1020  (22)

ACT:      Fundamental Rules  Rule 56(3)(a) Compulsory Retirement- Adverse entries in confidential reports relating to a remote period-Reliance on-Whether valid.

HEADNOTE:      The appellant  was a  State Judicial Service officer in the  grade   of  Additional   District  &   Sessions  Judge. Consequent upon  the decision  of the  State  Government  to reorganise the Higher Judicial Service it was decided that a number of  posts of  the  cadre  of  Additional  District  & Sessions Judges  be abolished  and the  incumbents of  those posts be  absorbed as  District &  Sessions Judges. The High Court at  one of  the High Court meetings held to screen the officers in  the cadre  of Additional  District  &  Sessions Judges, decided  to retire the appellant compulsorily on his at tanning  the age  of SS  years under Rule 56(3)(a) of the Fundamental Rules.  It was also decided not to recommend him for promotion  to the cadre of District and Sessions Judges. The  appellant  was  served  with  an  order  of  compulsory retirement dated August 28, 1981.      The Division  Bench of  the High  Court  dismissed  the appellant’s   writ   petition   impugning   his   compulsory retirement.      In the  appeal to this Court, it was contended that the High  Court  had  made  the  recommendation  to  retire  the appellant compulsorily  without applying  its mind  and that the decision  was based on collateral considerations and was arbitrary. On behalf of the High Court it was contended that the personal  confidential records  of  the  appellant  were considered by  the Full  Court Meeting  and the  decision to retire the  appellant under  Fundamental Rule  56(3)(a)  was taken after due consideration of the entire record.      Allowing the appeal: ^      HELD: 1.  It would be an act bordering on perversity to dig out old files to find out some material to make an order against an  officer. Dependence  on entries  about 20  years

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before  the   date  on  which  the  decision  of  compulsory retirement was  taken cannot  placed for  retiring a  person compulsorily, particularly  when such  person concerned  has been promoted subsequent to such entries. [474H; 475A]      D.Ramaswami v.  State of Tamil Nadu, [19811 2 S.C.R. 75 referred to.      2.  The   power  to   retire   a   Government   servant compulsorily in  public interest  in terms of a service rule is absolute provided the authority concerned forms 467 an opinion  bona fide  that it was necessary to pass such an order in  public interest. But if such decision was based on collateral grounds  or if the decision was  arbitrary, it is liable to be interfered with by Courts. [469 B-C]      Union of  India v.  Col. J.N.  Sinha   Anr.,  [1971]  1 S.C.R. 791;  Union of  India v.  M.E. Reddy & Anr., [1980] 1 S.C.R. 736;  Swami Saran  Saksena v. State of U.P., [1980] 1 S.C.R. 923; Baldev Raj Chadha Y. Union of India & ors [1981] 1 S.C.R.  430; and  Brij Bihari Lal Agarwal v. High Court of Madhya Pradesh & Ors. [1981] 2 S.C.R. 297 referred to. In the  instant case  the High  Court relied on some adverse remarks relating  to 1959-60 or thereabout. It was true that in the  early part of the appellant’s career the entries did not appear to be quite satisfactory. Some were and some were not good  and some  were of  a mixed kind. But being reports relating to  a remote period, they are not quite relevant or the purpose  of determining  whether he  should  by  retired compulsorily or  not in  1981. The scrutiny should have been confined to  the reports  for about  ten years  prior to the date on  which action  was proposed  to be  taken.  All  the reports except  for 1972-73  and 1973-74 were good and quite satisfactory. Even  in the  reports of  the said years there was nothing  to doubt  his integrity.  He  was  punctual  in attending to  his work. The reports for the years 1976-77 to 1980-81 speak  in favour  of the  appellant and  not against him. A  perusal of  the said  reports showed  that there was nothing  against   him.  In   these  circumstances   it  was impossible to take the view that the appellant was liable to be compulsorily retired. [470 E- H]      3. The resolution of the High Court recommending to the Government that the appellant should be compulsorily retired and  the   impugned  order  passed  under  Fundamental  Rule 56(3)(a) are  quashed. The resolution of the High Court that the appellant  was not  fit for  promotion to  the cadre  of District and Sessions Judges is also quashed. [474 E]

JUDGMENT:      CIVIL. APPELLATE JURISDICTION: Civil Appeal No. 3429 of 1982      Appeal by  Special leave  from the  Judgment and  order dated the  29th July,  1982 of the Madhya Pradesh High Court in Misc. Petition No. 1169 of 1981.      G.L. Sanghi and Ashok Srivastava for the Appellant.      D. Y.S..  Chitale, Mrs.  A K.  Verma, D.N.  Misra, A.M. Dittia and A K. Sanghi for the Respondents      The Judgment of the Court was delivered by      VENKATRAMIAH J.  The appellant is a judicial officer of the State  of Madhya  Pradesh,  who  would  have  ordinarily retired on January 31, 1984 on attaining 58 years of are, He was appointed 468 as a  Munsiff-Magistrate in the erstwhile State of Bhopal in 1953. On  reorganisation of  States on  November 1, 1956, he

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became a  member of  the Judicial  Service of  the State  of Madhya Pradesh.  He was  promoted as  an Additional District Sessions Judge  on January  . 8,  1974 and  was confirmed in that post  with effect  from November  25, 1971.  Consequent upon the  decision of the State Government to reorganise the Higher Judicial  Service of  the State  of Madhya Pradesh in accordance with  the advice  of the  High  Court  of  Madhya Pradesh 101  posts Of  the cadre  of Additional  District  & Sessions Judges  came to  be abolished and the incumbents of those posts  were to  be absorbed  as  District  &  Sessions Judges as per Government Memorandum dated February 24, 1981. In the  . issue  of the  said Memorandum  the High  Court of Madhya Pradesh  decided to  screen the officers in the cadre of Additional  District & Sessions Judges for the purpose of making recommendation  to the  State  Government  about  the promotion of  selected officers  to the  cadre of District & Sessions Judges.  For this  purpose, Full  Court Meetings of the Madhya  Pradesh High  Court were held on February 27 and 28, 1981  and March  1, 1981.  The case of the appellant was also considered  in that  connection It  is stated  that  at those meetings,  the High Court first resolved to scrutinise the cases  of all  the judicial  officers who were to attain the age of 55 years in the year, 1981. In the course of such scrutiny the  High Court  decided on  February 27,  1981  to retire the  appellant compulsorily  on his attaining the age of SS  years under  Rule 56(3)  of the Fundamental Rules. On March l,  1981 it decided not to recommend him for promotion to the cadre of District & Sessions Judges. Accordingly, the State Government  was addressed  by the High Court to retire the  appellant   compulsorily.  The   appellant   thereafter continued as  an Additional  District & Sessions Judge until he was  served with the order of compulsory retirement dated August 28,  1981. Aggrieved  by that  order,  the  appellant filed a  writ petition  before the  High Court. The petition was dismissed  by a Division Bench of the High Court on July 29, 1982.  This appeal is preferred by special leave against the judgment of the High Court,      Clause (a)  of the Fundamental Rule 56(3) as amended in 1976 which governs the case of the appellant reads thus:           "F.R.56(3)(a) A  Government servant  may,  in  the      public interest,  be  retired  at  any  time  after  he      attains the  age of  fifty five years without assigning      any reason by giving him a notice in writing 469      It is contended that the order of compulsory retirement is unsustainable on various grounds and the principal ground urged is  that the High Court had made the recommendation to retire the, appellant compulsorily without applying its mind to the  case as required by law that it was a decision based on collateral considerations and that it was arbitrary.      It is  now firmly  settled that  the power  to retire a Government servant  compulsorily in public interest in terms of  a  service  rule  is  absolute  provided  the  authority concerned forms  an opinion  bona fide ’that it is necessary to pass such an order in public interest. It is equally well settled that if such decision is based on collateral grounds or if  the decision,  is  arbitrary,  it  is  liable  to  be interfered with  by courts. (See Union of India v. Col. J.N. Sinha &  Anr). We  have  also  gone  through  the  following decisions, namely,  Union of  India v.  M.E. Reddy  &  Anr., Swami Saran  Saksena v.  State of U.P., Baldev Raj Chadha v. Union of India  of, Brij Bihari Lal Agawral v. High Court of Madhya Pradesh  & Ors.,  and D.  Ramaswami v. State of Tamil Nadu which  have a  bearing on  the question-before  us.  We shall   now proceed  to deal  with the facts, of the case in

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the  light   of  the  principles  enunciated  in  the  above decisions.      In Para  10 of  the  counter  affidavit  of  Shri  A.K. Pandey, Additional  Registrar of  the High  Court of  Madhya Pradesh filed before this Court, it is stated as follows .           "It is  not disputed  that Full  Court Meeting was      held on  27th/28th February, as well as Ist March, 1981      to consider the cases of Additional District & Sessions      Judges for promotion in the Higher Judicial Service. It      is also  not disputed  that  the  petitioner  stood  at      serial No.  10 in  the  seniority  list  of  Additional      District  Sessions Judges, It is also not disputed that      he was  confirmed as  Additional  District  &  Sessions      judge in August, 1976. The personal confidential record      of the  petitioner is  placed before this Hon’ble Court      and (it) speaks for itself (Annexure R-XI to XXXVIII). 470      It is  wrong to  say that  any extraneous consideration      operated  in   the  Full   Court  Meeting  against  the      petitioner and  it is wrong to say that the resolutions      in the  Court Meeting  were unjust,  arbitrary or  mala      fide. As already pointed out, the decision was taken in      Full Court  Meeting after  consideration of  the entire      record of  the petitioner,  The decision  to retire the      petitioner under  Fundamental Rule  56(3) was after due      consideration of  the entire  record of the petitioner.      (Confidential entries are Annexures R-XT to XXXVIII)."      On going  through the  said counter  affidavit  we  are satisfied that  apart from the confidential records, nothing else appears  to have  been relied  on by  the High Court to reach the decision that the appellant should be compulsorily retired. We  shall now  proceed to  Examine the confidential rolls maintained in respect or the appellant.      The Confidential  Reports in  respect of  the appellant are placed  before us.  lt is stated by the Registrar of the High Court  in Para  13 of  the counter  affidavit that  the appellants  performance   for  28   years  was   taken  into consideration for  screening under  Fundamental Rule  56(3), The High  Court has  relied on some adverse remarks relating to 1959-60 or thereabouts, lt is true that in the early part of his  career, the  entries made  do not appear to be quite satisfactory. They  are of varied kinds. Some are good, some are-not good and some are of a mixed kind. But being reports relating to a remote period, they are not quite relevant for the purpose  of determining  whether he  should  be  retired compulsorily or  not in the year ]981, as it would be an act bordering on  perversity to  dig out  old files  to find out some material  to make  an  order  against  an  officer.  We therefore, confined  our scrutiny  to the  reports  made  in respect of  the appellant  for about  ten years prior to the date on  which action  was taken  against him  to retire him compulsorily. We  find that  all of  them except for 1972-73 and 1973-74 are good and quite satisfactory. Even in 1972-73 and 1973-74 it is stated that there was nothing to doubt his integrity and  that he  was punctual  in attending it to his work. It may be noted, that the appellant was promoted as an Additional District  & Sessions Judge on January 8, 1974 and was also  confirmed with effect from November 25, 1974 by an order passed  in 1976.  Any adverse  report in respect of an earlier period  unless it had some connection with any event which took  place subsequently cannot, therefore, reasonably form a  basis for  forming an  opinion about the work of the appellant. 471 We give  below a few relevant extracts from the Confidential

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Reports for the period subsequent to March 31, ]974 .                         Year : 1975           On confidential  enquiries from the members of the      Bar and  from other  sources nothing  was found against      him in  respect of his integrity. During surprise check      he was found on the board in time. Enquiries from other      sources also  disclosed that  he usually  comes in time      and does not rise early and engages himself in judicial      work. This  impression was gathered from judicial diary      also.           After  scrutiny   of  the   cases,  the  following      impression was  gathered.  Knowledge  about  rules  and      orders, law and procedure is adequate but the number of      the interlocutory  application is sometimes not entered      in the  margin of the connected order-sheet in red ink.      Judgments are  good with proper discussion of evidence.      Interlocutory matters  are not  kept unduly pending for      long time. Rules regarding pleadings, and evidence etc.      are followed. Punishments were adequate. Examination of      accused is  proper. Charges  framed are proper.- Record      is legible           Control  and   supervision  over   the  staff   is      satisfactory. Judicial  diary calls  for no  particular      comments. His  relations with the Bar are cordial, with      no complaints of any misbehavior with any litigants His      average disposal  during the  period in question was of      very good category. There is nothing else to comment in      particular.                         Year : 1976 Knowledge of law and judicial      Good capacity: Remarks about his promptness in    Promptness satisfactory the disposal of cases: Remarks about reputation of integ- Nothing was found against rity and impartiality:             his integrity or                                    impartiality. General Remarks:                   He was mostly punctual                                    and 472                                    did not rise early.                                    Judgments    were proper                                    and contained the                                    required discussion of                                    evidence Charges and                                    examination of accused                                    and issues were proper.                                    Promptness in framing of                                    issues was marked in                                    recent months. Control                                    and super vision over the                                    staff was satisfactory.                                    Settling dates should not                                    normally be of more than                                    two weeks as was notice                                    in certain cases.                                    Interlocutory matters                                    were generally not kept                                    unduly pending. Net Result:                        Good                         Year 1976-77 Knowledge of Law and Judicial      Satisfactory capacity: Remarks about his promptness in    Generally prompt the disposal of cases: Percentage of average monthly      148. 1/2,%

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disposal Behaviour towards members of the   Cordial Bar and Public: General Remarks:                   Satisfactorily managing                                    heavy and exclusive civil                                    file. Mostly punctual. Net Result:                        Good                         Year 1977-78 Knowledge of Law and Judicial      Good capacity:                                    Entry against almost all                                    the 473                                    columns in the Report-                                    Good General Remark :                    Has good grasp of facts                                    and law. Judgments in                                    proper form and well                                    written. Net Results                        Good                         Year 1979-80           (a) Shri  Shrivastava  begins  his  judicial  work      punctually at 11.00 A.M. and works throughout the Court      hours. So  far, it  appears that  he has  arranged  his      Cause List  judiciously fixing  civil work for the day.      This Judge  understands that there can be no subsequent      pleadings except  by way  of amendment of pleadings. In      other words, he understands the purport of order 8 rule      9 and  order 6  rule 7  of the Civil Procedure Code. He      also understands  what is  pleading i e. Order 6 rule 1      of the  Civil Procedure  Code  as  compared  with  oral      statement. He  so far  appears to be equally conversant      with order  17 rule  I of the Civil Procedure Code i.e.      adjournment is  only granted  for sufficient  cause. He      does no.  find any  difficulty in applying law relating      to pleadings  and interlocutory  matters. So  far,  his      procedure conforms  to rules  or pleadings,  filing  of      documents, framing of issues and recording of evidence.           (b) So  far,  on  the  criminal  side,  he  frames      charges with  care, records evidence with such care and      prepares examination of accused with equal care.           (c) So far, he makes a neat and legible record. He      generally supervises the work of ministerial staff.           (d) His  judgments, both on civil and criminal, so      far, appear  to be  well written.  He is  prompt in his      disposals including  doing work therein. His work, as a      whole, so far, has been found to be of high quality. He      also takes  up civil  work. His relations with the Bar,      so far, appear to be cordial.           (e) The  above remarks are subject to the D.O. No.      462/C. Rs/1979 Jabalpur dated 6.3.80 of the High Court. 474           (Note: The  Memo. sent  to the appellant in March,      1980 Only  informed him of two remarks-(1) that the did      not dispose  of Sessions trials quickly and (2) that he      did not  follow the  amended provisions  under order 39      rule 3  of the  Civil Procedure  Code. The  Memo.  also      disclosed that the appellant did not write judgments in      civil appeals according to the pattern prescribed; that      Sessions trials  were not  conducted quickly  and  that      (he) granted  unduly long adjournments of about a month      or so for examination of accused and defence witnesses.      The appellant  sent a  prompt reply to it oil March 28,      1980 refuting  the correctness of the above remarks. We      have gone  through the said reply. On going through the

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    facts mentioned  therein,  we  feel  that  the  remarks      against him appear to be totally uncharitable. It shows      that the appellant has disposed of more number of cases      than what  ordinarily could  be disposed  of during the      relevant period. We are not informed of what action was      taken on his prayer for expunging the said remarks).                        Year: 1980-81      His out turn-during the year was about 200 percent. The      quality of  work may  be classed as good. ’B’ category.      No specific  complaints were received against him about      his behaviour or integrity."      The above  reports no  doubt speak  for  themselves  as stated in the counter affidavit of the additional Registrar. But they  all speak  in favour  of  the  appellant  and  not against him. A persual of these reports shows that there was nothing against  the appellant which necessitated the action which was  taken against  him. In  the state  of  the  above record it was impossible to take the view that the appellant was liable  to be compulsorily retired, unless there was any other circumstance  which was  adverse to him. We have found it necessary  to incorporate  in this  judgment the relevant confidential remarks  in great  detail only to show that the action of  the High  Court was  not called for. We may state here that the learned counsel for the High Court very fairly stated that  there was  no other  circumstance  against  the appellant during  the period  subsequent to 1971 which would support the  order of  compulsory retirement.  From what has been stated  we find  that the  decision taken  by the  High Court in  respect of  the appellant  is arbitrary  as it was mainly based  on the  entries that  were made about 20 years before the date on which the decision was 475 taken Dependence  on such stale entries cannot be placed for retiring  a   person  compulsorily,  particularly  when  the officer concerned  has  been  promoted  subsequent  to  such entries, as  held by  this  Court  in  D.  Ramaswami’s  case (supra). In  that case  one  of  us  (Chinnappa  Reddy,  J.) observed thus at pages 79-80:           "In the  face of  the promotion  of the  appellant      just a  few months  earlier  and  nothing  even  mildly      suggestive of ineptitude or inefficiency thereafter, it      is impossible  to sustain  the order  of the Government      retiring  the   appellant  from  service.  The  learned      Counsel for  the State  of Tamil  Nadu argued  that the      Government was  entitled to take into consideration the      entire history  of the appellant including that part of      it which was prior to his promotion. We do not say that      the previous  history of a Government servant should be      completely ignored, once he is promoted. Sometimes past      events may  help to  assess present  conduct. But  when      there is  nothing in  the present  conduct casting  any      doubt on  the  wisdom  of  the  promotion,  we  see  no      justification for needless digging into the past."      In the  result  the  judgment  of  the  High  Court  is reversed and  the resolution  of the High Court recommending to the  Government that the appellant should be compulsorily retired  and   the  impugned   order  passed  thereon  under Fundamental Rule  56(3) are  quashed. The  resolution of the High Court  that the  appellant was not fit for promotion to the cadre of District & Sessions Judges is also quashed. The High Court should now consider in the light of this decision whether the  appellant was  entitled to  be  promoted  as  a District &  Sessions Judge  as on  the  date  on  which  his immediate  junior   was  promoted   and   make   appropriate recommendation to  the State  Government. The  appellant  is

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entitled to  all consequential  financial and other benefits as if  the order  of  compulsory  retirement  had  not  been passed.      The appeal is accordingly allowed with costs. N.V.K.                                      Appeal allowed. 476