. J. D. SHRIVASTAVA v. . .STATE OF M. P. & OTHERS

A 466 • . J. D. SHRIVASTAVA V•

. .STATE OF M. P. & OTHERS B January 24, 1984 ) . ~ • ·. Fundan1ental,, Rules, Rule 56(3)(a) _Compulsory Ret(rement.::,..;-Adverse entries_. c in c?nfidentia/ rePorts relating to a re1n<?te pe_t'.io.d-Reliance. on-Whethf:r v(llid. . . . .. The appellant" was a State Judicial Service Officer·in the grade of Additional District& s~'>sions J11dgc. Qonsequent up0n the ..decision of the Stat.e Government to reorg\}nise the Higher Judicial S~rvice it was decided that a number of pOs_ts of the cadre of Additional District & Sessiolls Judges be abolished and the incumbents . of those posts be absorbed as District & Sessions Judge"s. The High Coµrt' at one of the Full. Court ·meetings held, to screen the Officers in the cadre of Additional D District & Sessions Judges, deCidcd to retire the appellant compulsorily on his at· taining the age .of 55 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 ~ompu_lsory retirement · dated August. 28, 1981. • E The Division' Bench ·or the High Court di~missed the .appellant:s. wdt petition iinpug~ing-,_hi~· compulsofy retirement.

In the appeal to this Court, it was contended that the High Court had n1ad~ - the recOmmendatloii to retire the appellant compulsorily withoUt applying its mind and thit the decison was based on collateral ·considerations and ·was arbitrary. On r I behalf ·of-the High Co~rt it Was contended that" the personal ·confidential reCords of the appellant wer~ co'ns!derOO by the Full Court MOOting and the d&:isicin to .F retire the app~llarit under Fundamental Rule 56(3)(a) - was taken after due conside· ration of the entire record.

• Al_lowing .the appeal: .\ HEt.D~-: 1. it ;~~ld-~ ari act borderiOg on pe~ersity,to dig out old files ~o find out some matirial to make.all ordci- against an officer. _Dependen"ce on entries abOut G 20 year~ before the date on which the_decisi.on Of ·,;ompulsory retirement Was takeQ. cannot b~~ Placed ro·r retiring a person compulsorily, par'ticularly whe~ such persOn .concerned has bOOn prof!lotecl subs.equent to·such_ entries. [474I:J; 47~A} f

D.Ramaswami v. State of Tamil Nadu, {1981] 2 S.C.R. 75 referred to.· ' . ff 2. The"PoWer to retire a.G.Oveffi.ment servant compulsorily in pllblic. inte· reSt in tcfms ·qf a servi~ r.ule is, absolute provided the authority concerned forms

J. D. SHRIYASTAVA v. M. P. STATE (Venkatai'amiah, J.) . 467 A ah opinion bona fide that it was necessary to pass· such ·an Order·in public ·interest. But if such decision was based on collaterel grounds or if the d~cision ,;as· ~.rbltr<lry, it.is liable ' to be interfered ~ . with by Courts. . [469-. B-C] • ·, , '. • I '. ··_ •

Union of India v. Col. J.N'. Sinha & Anr., i-1971] 1 S.C.R. 791; Union of India v. M.E. Reddy & Anr., [1980] I S.C.R. 736; Swami Saran Saksentfv. State of U.P., (1980] 1 S.C.R. f2~ Baldev Raj Chadha v. Union of India & ·Ors. [1981] 1 S.C.R. B · 430; and Brij Bihari Lal ,Agarw~f 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 reffiarks relating to 1959-60 or: .tlieK:abbuts. I twas true that in the early part of the appellant's" career the .entries did not appear to be quite .sati~factory. Some were "good, some were ' I , · . ......._, _nOt good and some wCre· 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 ' c be retired complllsofily or not in 1981. The scrutiny should have. bCen Confined to· · the reports for about ten years 'prior to ihe dafe on which action wits Proposed to be taken. All the reports except for 1972-73 and 1973-74 were· good a·nd. quite satis- fact~ry. Even i_n the c~ports. of the said years there .was nothing to doubt his inte~ grity. He was punctual. in attending· to his ~oi-k. The reports'for the years 1976-77 .'to 1980-81 speak in, favour Of the appellant a_nd not against him. A perusal of'the said reports showed _that there was nqthing ._against him .. In these circumstances it D waS impo~sib!e to ta~e the view that the appellant was liable to be compulsorily retired. [470 I;-H] · .. _3. Thq. resolution of 'the High Cqurt recommending tO the Government . that the·. appellant should be cotnpulsOfily_ retited, and the in1pugned order passed ui:i..der. Fllndamental_ Rule_ .56(~)(a) are qU!she~. The r~sqlution of the High_-Court . that the appellan~ was not fit fo.r promotion to the cadre of .District and Sessions E iudges is also q~ashed .. [ 474 E] ·

CIVIL APPELLATE JuruSDJCT!ON ; Civil Appeal No. 3429 of 1982

Appeal by Special leave froni the Judgment and ·orde~ dated ·. the 29th July, · l 982 of the M1dhya Pradesh. High Court in Misc. Petition No; I )69... of 1981. ' , . · · ·

G.L. Sooghi a.ncl Aihok Srivastava for the Appellant.

I Di., Y.S. Chitale, ·Mrs. AK. Verma, D.N. Misra, AM. Dittia and A.K. Sanghi for the R~spondents. G

'The Judgment of the Court was delivered· by

VENKATARAMJAH," J. The i\ppellani is a judic'al cfficer·cf'the ·• Sta~c of Madiiya Prndesh, , who •. would have ordinarily rnir(d on January 31, 1984 on attaining 58 years of age. He was app~intcd

p. 468 Copy page pinpoint

" A as a. Munsiff-Magistrate in the erstwhile State of Bhopal 'in 1953. On roorganisation of States on November I, 1956, he became ·a meml'ler of the Judicial .Service of the Staie of Madhya Pradesh.. He ~was promoted as an Additi.onal District·& Sessions Judge on January 8, 197?1 and was confirmed in that post with effect from Nove~ber 25, 1974. Consequent upon the decision of the State Government B . to reorganise the Jiigher Judicial Service of the State of Madhya ·Pradesh in acco.rdance with the advice of the High C~urt of Madhya ~ Pradesh; WI 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 M:emoraildum dated February 24, 1981. On the issue of the· said " ·• Memorandum, the High Court of Madhya Pradesh decided to. screen the officers in the cadre of Additiopal Dislrict & Sessions Judge.s 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 plirpose, Full Court Meetings of the Madhya ·Pradesh High Court were · held on February 27 and 28, D 1981 and March 1,.1981. The case of.the appellant was also.con- sidered in that connection. It is stated that .at those meetings, the High Court first resolve.d to· scrutinise the cases of all the judicial officers .who were to attain the age of 55 years in the year, 1981. fo the course of such · scrutiny the High Comt decid.ed on February 27, 1981 to retire the appellant co~pulsorily on his attaining .the age of 55 years under Rule 56(3) of the Fu.ndamentaLRules. On March J, 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 appellat compulsoriiy. The appellant thereafter continued as an Additional District & Sessions Judge until he was served wjth the order of compulsory retireJY.ent dated August 28, 1981. ·Aggrieved by that order;' the appellant filed ; writ petition before the High Court. The petition was dismiss<d 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.

Clau;e (a) of the Fundamental Rule 56(3) as ·amended in 1976 \ G which governs.the ca:sc of the appellan~ reads thus: • "F.R.56(3)(a) A. doverrunent servant may, in ihe publi~ • interest, be retired at any time after he attains the age of fifty- H five years without. assigning aDY reason by giving him a notice in writing."

J. D· SHRIVASTAVA v. M. P. STATE (Venkatrnmiah, J.) 469

It is contended that the. ord.er of compulsory retirement is A unsu;tainable on various grounds and the principal ground urged is that the High Court had made the recommendation· to: retire the appellant compulsorily without appl1ing its mind to the case as required a by law; that it was decision .based on collateral considerations and that it was arbitrary. • · B It is DO\; firmly sottied that the power to retire Governmenta servant "compulsorily in pub.lie interest in terms· Of a scrvi~e rule is a·bso.lute providi:-d the authority concerned. for1ns 1.n opinion bol1(l_fide that it is necessary to pass such an order in public interest. . It is . equally well settled that if &uch decision is based on collateral grounds \ 0r if the decisio;'l is arbitrarv, it is liable to ·he interfei·ed with by courts. C (See Union of India v. Col. J,N. Sinha & Anr.) 1' 1 We have also gone through the following decisions, namely, U1iio11 ~f India ~- M.E. Reddy & Anr.,''> Swami Saran Saksenil v. State of U.P.,'3 1 Baldev Raj Chadha v. Union of India & Ors.,' 41 Brij Bihari Lal Agarwal v. High Court of Madhya Pradesh & Ors., '"and J).Ramaswami v.State of Tamii NaJu'" which have a bearing on the question before us. We shall D · ·no\v proceed to deal with the facts of the case ih the light of the principles enunciated- in t~e .above_ decisions.

In Para JO of the counter.affidavit o[ Shri A".K. Pandey, Addi- . tional Registrar of the High Court of Madhya "Pradesh filed before thi.s Court, it is stated as follows : E

"It is not disputed that Full Court Meeting was held bn._ 27th/28t~ February, as well as ht March; 1981 to consider the cases of Additional District & Sessions Judges for promoti- ti0n in the Higher Judici.al Service. It .is also ·not disputed that the petitioner stood at serial No. IO in the seniority list of Additional District & Sessions Judges. It is also· not disputed that he was confirmed as Additi~na 1 District· & Sessions .Tu~ige· in August," 1976. The personal corifide~tial record of the petitioner iS placed before this Hon'ble Court and (it) speaks for itself . (Annexure' R-Xl fo XXXVITI). G (1) [1"971] I S.C.R. 79L .(2) [1980] I S.C.R, 736. ~3) [1980] I S.C.R. 921. "(4) [1981[ 1 S.C.R. 430. (5) [1981] 2 S.C.R. 297. (6) [1981] 2 S.C.R.. 75. - .. H

.. . 470 SUPREME COURT REPORTS . [1984] 2 .s.c.R:

. It is wrong to say that any extraneous consideration operated in .the ·Full Cour\ ·fyleeting against the. petitioner and it is wrong t.b say that the resolutions in· the Court Meeting were unjust, arbitrary or malafide. · ............ : . .. As already pointed out, the deci9ion was taken ·in Full Coui't Meeting· - after conside~ation of the entire. re.cord ·of the petitioneL B. The decisi·on ·to retire the petitioner under Fundamentai Rule 56(3) was· after due consideratiqn of the entire record • . of the petitioner" (Confidential entries are Annexures R-XT to XXXVlll).'1 , _, i .. Oq gdlrig ·through_ the' said counter affidavit we are ·satisfied c that apart from the confidential records, nothing else appears to havi; . been relied on· by the High Court to reach the decision ·that the ~ppellant si10uld be c6mpulsorily retired. We shall now. proceed-to examine the confidential rolls maintained in resp~ct of the appellant.

D · The Confidential Reports in respect of the appellant are placed · before .µs. Tt is sta!ed by the Registrar of the High Court in Para 13 of the col\nter affidavit that-the appeliant's performance.for 28 years was taken·into consideration for .screening under ::Fundamental .Rule· 56(3), . The High Court has relied ;;n some :adverse remarks relating to 1959-60 or theieabouts, ·It is true· that in the. early part of bis E .. car,eer, the entries made 'do not appear to be ·quite satisfactory. They are of varied ·i<inds .• Some are good: some are not gocd arid some ., are of a mixed kind. But being reports rela.ting to a remote period, they are not quite relevant for the puivose o.f determining whether he . · should 'be retired compulsorily or not. in· th•' year 1981/ as it would l:ie an act bordering on perversit')'to dig out old files to' find ouf so_me F. material to make an order against an officer. We, therefore; confined our ·scrutiny to the reports.made in respect of the appellai>t for about . ten years prior to the date on which .action was taken against him lo retire hi in compulsorily. We find that all of the.m except for J972: 73 and 1973-'74 are g~oo and quite ,satisfactory. Even in 1972-73 and 1973-74 it is stated that there was notl\ing.to d0Ubt his integrily and G .that he ·was punctual iq ~ttcndiii-g lt tO J~i5 w_ork. It may be noted · that the app.illani was.promoted ,\s a ·a:n Additional District & Sessions Juige on fanuary 8, 1974 ·and was ,;Jso confi'rrnced wilh effoct from NJvembor 25, 1974 by an order passed in 1976. ·Any adverse report in respect of .an eri.rlie_r .p.ericd uniess it had sonie connectio_n w.ith any H event which too_k- place subsequently cannot, therefore, reasonably ' ' . · · form a basis for forming an opini.on about the work of the appellant. - . .

J. D. SHR.lVASTAVA r. M· P. STATE (Venkqtaramiah, J.) ' ~7I We give below a "few relevant extracts·from· the Confidential Reports A for the period subsequent to 'March. 31, 1974:

Year : 1975

On confidential enquiries from the members of the llar and from other sou.rces nothing was found against him in B respect of his integrity. During surprise check he· was found on the board.· in time. Enquir~es from other sources also disdosed that he usually comes in time and does not rise early and engages himself in judicial work. This impressioi:i was ga1hered from judicial diary _also. c 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 ihe connected•order-sheet in red ink. Judgments are good with proper discJJSSion of evidence. Interlocutory matters are D not kept unduly pending for long time. Rules regarding pleadings, and evidence etc. are followed. Punishments were adequate. Examination of accused is proper. Charges fralT)ed are proper. .Record is ~egible. '

Control and supervision over the staff is satisfactory. E· Judic.ial diary calls for no particular comments. His ·rela-- ti"ons with the Bar are cordial, with no complaints of any· misbehaviour with any litigants. His average disposal l · during. the period in question was of very good category. There is nothing else to comment in particular.. F Year : 1976

Knowledge ·of law and judicial Gocd capacity:

Remarks about his promptness in Promptness satisfactory G the disposal of cases :

'Remarks about ftputatio"n 0f integ- Nothing was found 'agains\ . rity· and impartiality : · his .integrity or impartiality .. H He was mostly punctual and

472 SUPREME COUR'I' REP ORTS [1984] 2 s.c.R. ·' ., . A (lid not rise early. Judgments were proper and.contained the required discussion of evidence Charges and examination of ' accused and issues were. pro- per. Prom.ptness in framing of · B issues was marked in recent . months. Control and super- · . ' t .4. vision ove~ the staff was satis-· · • factory. Settling dates should · not normall 1 he of more than two weeks as was noticed in certain cases. interlocutor¥. matters . !Vere generally not kept 1induly pending.

Net Result.: Good

. Year 1976-77 ·

Knowle.~ge of Law and Judicial ·Satisfactory capacity :

Remarks a bOut his promptness in· Generally prompt . ·E the disposal of cases : .

Percentage of .average . monthly disposal :

Be)1aviour towards members of the.· Cordial F Ba.r and Public:

General Remarks: Sa\isfact~rily managing heavy . ·and exclusive civil file. Mostl)' .punctual. .

G Net Result: Good

Year 1977-78 ,

: Knowledge of. Law and Judicial Gocd. H <:apacity: Entry against almost all the

v. (Venkataramiah, J.) • 473 - J .. D. SHRIVASTAVA M. ·P. STATE

. rnlum.ns in th~ Report-Good . A General Remark · Has good grasp -Of facts and . law. Judgments in proper form

.. .. and well writteri. • Net Results Good B • Year 1979-80

(a) Shri ShJivastava begi~s his judicial work punctu~lly. at !LOO.AM. and works·throughout the Court hours. So far, it appears that he has arranged his Cause List judicious.l:t fixing civil work for the day. This Judge . understands that · there can be no subsequent pleadings e~cept by way of amend· ment of pleadings. ·fo other words, he understands the ·purport of Order 8 rule 9 o·nd Order 6 rule 7 of the Civil .Procedure Code. He .also understands what 'is pleading i.e. Order 6 rule I of the Civil.· Procedure. Cod.e as compared with oral stateme'nt. He ·sq far. appears to be equally conversant with Order· 17 rule 1 of the Civil Procedure. Code i.e .. adjournment is only granted for sufficient c~use .. He does fi,,, find any· difficulty in applying law relati-ng to ·pleadings and interlocutory matter>. So far, his procedure

• co.nfornis to .rtiles of pleadings; filing,'tf documents, framing of issues. UnCr fecordlng of evidcnc~. .

(b) So far, on the criminal sir.le, he fr~mes charges with . E

care, records evidence with such care an~ ·prepares examinaa lion of accused with equal care. . . .' ' . ' ' .F (c) .So far, he makes a neat .and legible record. He g~nerally su~'erv)ses ·the_ wofk o~ riiinisterial ~ta ff.

(d) His judgments, both on .civil and criminal, so far, appear to. be well written. He· is prompt in .his disposals l1h.Juding doing 1,vork ~herein: -His \vork, as· a whole, so . .G far, has been found to be of high quality. He also takes up civil work. His relations with the Ba» so far, app.ear to ' be ·cordia I. . · .

' (e) The above remarks are subject to thc'O.O. No. 462/C. H R.s/1979 Jabalpur date.d 6.3 ..80 of th'e High Court .

•. 474 • ' SUPRE\IE CO'. JTZT RBPORTS (1984] 2 S.C.R.

(NJte : The M~mo. se:it to the appellant in M1rch, 1.980 A only informed him of two remarks-,--(!) that the did not dis- pose of Sessions trials quickly and (2) that he did not follow the amended provisions µoder Order 39 rule 3 of the Civil Procedure Code. The Memo. also disclosed that the appel- lant di9 not write judgments iti civil appeals according to the pattern prescribed·; that Sessions trials· were not conducted quick;ly ;nd that (he) granted unduly long adjournments of . about a month oi so for examination of accused and defence witnesses. The appeilant sent .a prompt reply to it .on March 28, 1980 refuting the correctness ofthe above remarks. We have gone through the said reply. On going through the c facts mentioned therein, we foe! that the remarhagitinst him appear to be tgtally uncharitable. It shows that the appellant has disposed of mor~ number at <:ases thc•1 what ordinarily could )le di.sposeci of during the relevant ~enod. We are not informed of what action was taken on his prayer for expungini the said remarks). · D Year:. 1980-81

His out turn during the year was about 200 percent The quality of work may be cl1ssed as good. ·'B' category. No specific co~plaints we\e r:eceived aga;nst him about his behaviour or ;ntegri~."

The a hove reports no doupt speak' for themselves as stated in the counter affidavit of the Additional Registrar. But they all speak in j favour of the appellQnt 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 .. Jn the state of • the above record it was impossible to take the view.that the appellant was liable to be cqmpulsorily retired, unless there was any other cir- ~\·. cuimtance which was adverse to him. We .have found it necessary to ~ incorporate· in this judgment the re!~vant confidential remarks in · ·Ii great dct1il 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 thai there was no other circurostancc again•t the appellant· during the period subsequent to )-971' which wopld t support the order of compulsory retirement. 't'rom what has been . L. stC1ted we find that the decision taken by the High Courf in respect of - the ,,"ppellant is arbitrary as it was mainly based on :he entries that were made about 20 years before the. date on which the decision was

1. D. SHRIYASTAVA v. - M. P ..STATE (Venkatmmiah, J.) 475

~ taken. Dependence on such stale entries cannot ·be placed for·retir, ;, A ing a person compulsorily, particularly when the officer .concerned has been promoted subsequent to such entries,. as held by this Court iu . · D. Ramas1vamf's .case (supra). In that case one of us (Chinnappa Reddy, J.) observed thus at pages ~O:

''fn the face of the promotion of the appellant just a few months earlier. and nothing even niildiy suggestive of ineptitude or inefficiency thereafter,-it is impossible to sustain the order of the Government ·retiring the appellant from

- ( I service. The iearned Counsel for the State of Tamil Nadu argued that. the. Government was entitled to li'ke into·c-;m:· si4eration the entire history of the appellant including that part of it which was prior to his promotion .. We do not say c that the previous history of a Government' servant.should be compietely ignored, once he is promoted. Sometimes past events may help to assess present wnduct. But when there.is • nothing in the present conduct casting any doubt bn tlie wisdom of the promotion, we 0ee no justification for needless D • digging into the past.''' ···

Jn the result ihe judgment of the High Court i.s .reversed and the ,\-. res.olution 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. • E -, The. res.olution of the High Co~rt that the appellant. was not fit for . \promotion to the cadre of D•stnct·& Sessions Judges 1s also quashed. · The High Co4rt should now considet in the light of this decision ··whether the appellant was entitled to be promoted as a District & Sessions Judge as on the date on whi~h his immediate junior was -j, promoted and make appropriate recomme~dafon to. the State Govyrn-' F ment. The,appollai1t is entitled to all con.sequential financial .and I other henefits as if the order of compufsory retirement had not been passed. '· • ·

The ·appeaJ is accordingly allowed with costs. ' ·~ N . V.K.· Appeal allowed.