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TMI Blog2011 (9) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Delhi in C.W.P. No. 2157 of 2002, C.W.P. No.1965 of 2002 and C.W.P. No.2362 of 2002. The appellants were the Members of Delhi Higher Judicial Service (`D.H.J.S.', for short). Mr. M.S.Rohilla and Mr. P.D.Gupta were compulsorily retired from service under Rule 56 (j) of the Fundamental Rules, read with Rule 33 of the Delhi Judicial Service Rules 1970, whereas deceased Mr. R.S.Verma was compulsorily retired from service under Rule 16(3) of All India Service (Death-cum-Retirement Benefit) Rules 1958 read with Rule 27 of the Delhi Higher Judicial Service Rules 1970, on different dates. They had challenged orders of their compulsory retirement from service by filing Writ Petitions under Article 226. Though the result of each appeal would depend on its own facts, having regard to the commonality of submissions on legal aspects, this Court had tagged these cases together and heard them one after the other. This Court proposes to dispose of the three appeals, by this common Judgment for the sake of avoiding repetitiveness of legal principles. However, the Court proposes to consider each case on its own merits. With these observations, the Court proposes to deal with appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 were written in one go and he was awarded `C` remark, which means below average. The ACRs for above mentioned three years were communicated to him on January 8, 2001 whereupon he had made representation against the same on February 16, 2001. 4. In the A.C.R. for the year 2000, he was given `C-' remark, which means his integrity was doubtful. While communicating the ACR for the year 2000, he was given a time of six weeks to make representation against the same. Such communication was received by him on September 25, 2001. On September 21, 2001 the Screening Committee of the High Court decided to retire Mr. Verma compulsorily from service. The Full Court of the Delhi High Court accepted the recommendation made by the Screening Committee in its meeting held on September 22, 2001. After acceptance of recommendation of the Screening Committee by the Full Court, entire work entrusted to him was withdrawn by a letter dated September 24, 2001. He made representation dated September 25, 2001 against the proposed order retiring him compulsorily from service. He was thereafter served with order dated September 27, 2001 retiring him compulsorily from service with effect from September ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retiring him compulsorily from service was liable to be set aside. (5) His representation against the entries for the years 1997, 1998 and 1999 was rejected vide letter dated October 5, 2001, which was received by him on October 8, 2001 whereas his representation dated October 13, 2001 against the entry for the year 2000 was dismissed by order dated April 5, 2002, before which order of compulsory retirement from service was passed against him on September 28, 2001 and thus non-consideration of representation before passing order of compulsory retirement had vitiated order of his compulsory retirement. (6) Before taking decision to retire him prematurely from service opportunity of being heard was not given to him. (7) The circumstances of the case indicated that the Order of compulsorily retirement passed against him was punitive, arbitrary, mala fide and in violation of the principles of natural justice. 6. In support of these submissions, Mr. Verma had relied upon decisions in (a) Baikunth Nath Das Vs. Chief District Medical Officer, Baripada (1992) 2 SCC 299; (b) Madan Mohan Choudhary Vs. State of Bihar (1999) 3 SCC 396; (c) High Court of Punjab & Haryana Vs. I.C. Jain (1999) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l justice were not attracted in case of compulsory retirement. The High Court observed that in this case the ACRs for three years were recorded at the same time which according to High Court was not proper, but held that there is no absolute proposition of law that recording of ACRs at once would be perse illegal. The High Court expressed the view that if good reasons were noted for which the ACRs could not be recorded by stipulated dates and the matter of recording of ACRs had to be deferred, the recording of ACRs of few years at one point of time would not render the same illegal. The High Court noticed the reasons as to why ACRs for the years 1997, 1998 and 1999 were recorded in one go, and thereafter held that there was sufficient explanation for recording the ACRs of three years at one time. The argument that there was no material justifying recording such ACRs was considered to be misconceived in view of settled legal position. According to the High Court the entire service record of Mr. Verma from 1995 to 2000 revealed that even for one year he had not earned "Above Average" remark and his performance and conduct as a judicial officer in fact had kept on deterior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 against Judgment dated 28.05.1999. On 24.12.1999 he attained the age of 50 years. In July 2000 the Screening Committee had reviewed the cases of various officers of DHJS including that of Mr. Gupta for premature retirement in public interest. The Screening Committee gave report dated July 17, 2000. In the report it was mentioned that the Members of the Screening Committee had gone through the service record including the ACR dossiers of the officers of Delhi Higher Judicial Service and Delhi Judicial Service who were within the zone of consideration for being considered for premature retirement in public interest at the age of 50/55 years, but they did not find, for the time being, any Officer who could be retired prematurely in public interest. The Full Court considered the report of Screening Committee in its meeting held on 22.07.2000 and accepted the report. However, on 29.07.2000 the Full Court recorded ACR of the appellant for the year 1999 as "C". On ACR being communicated, to him, he filed representation dated 08.09.2000. 12. The LPA No. 329 of 1997 filed by the High Court against Judgment dated 28.05.1999 rendered by a Single Judge in W.P.(C) No. 4334 of 1997 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r against the order retiring him compulsorily from the service. It was forwarded by the Administrator, to the High Court for necessary action. The High Court by order dated 12.02.2002 rejected the representation made by the appellant on 16.11.2001 which was addressed to Lt. Governor. The representation of the appellant against adverse ACR for the year 2000 was also rejected by the High Court vide order dated 16.03.2010. Feeling aggrieved by the order retiring him compulsorily from service the appellant filed W.P.(C) No. 2362 of 2002 in the High Court and also prayed to expunge adverse remarks in his ACR for the years 1999 and 2000. 13. On service of notice the High Court filed reply affidavit controverting the averments made in the petition. It was explained in the reply that the Screening Committee of the two learned Judges had considered the overall service record of the appellant and found that his performance and conduct were recorded as average for the years 1979-80, 1980-81, 1999, 1997 and 1998. The High Court mentioned in the reply that in the report for the year 1995, the Inspecting Judge had recorded that he had heard complaints about the integrity of the appellant. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95 recording "C-Integrity Doubtful" was upheld by the High Court, on judicial side, on the ground that there was sufficient material to record the said ACR. According to the High Court the Judgment of the Division Bench of the Delhi High Court in L.P.A. was upheld by the Supreme Court which operated as res-judicata so far as the appellant was concerned. The High Court, on the basis of said fact, came to the conclusion that the action of the High Court on its administrative side, to compulsorily retire the appellant from service would be sustainable as easing out a person with integrity doubtful. The High Court noticed that so far as the ACR for the year 1999 was concerned the appellant was given "C" grading i.e. below average and representation made by him was rejected by the Full Court in its Meeting held on 19.05.2001. High Court after looking into the over all career profile of the appellant held that it was totally untenable to allege that there was any bias or mala fide against him. 15. In view of the above mentioned conclusions the High Court rejected the petition. 16. Thereupon, the petitioner filed Review Petition before the High Court. However, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Delhi held on July 22, 2000 produced on the record of the case, indicates that Full Court had accepted the report of the Screening Committee. In July, 2000 he received a communication from the High Court mentioning that his ACR for the year 1999 was graded as `B'. On 21.9.2001 he received a communication from the High Court with reference to the ACR for the year 2000 whereby he was informed that he was given Grade `C'. It was further mentioned therein that his integrity was found doubtful. By the said communication, he was given six weeks time to make a representation against the said grading. According to Mr. Rohilla, when he was awaiting the response to his previous representations made with reference to the ACRs for the years 1998 and 1999 and when he was yet to respond to the ACR for the year 2000, he received communication dated September 27, 2001 from the High Court prematurely retiring him from service under rule 56(j) of the fundamental Rules read with Rule 33 of the Delhi Subordinate Judicial Services. According to him he made a representation requesting the respondents to supply the material upon which decision was taken to prematurely retire him from se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that he needed to be watched so far as his efficiency as a Judicial Officer was concerned. The District & Sessions Judge, Delhi, in his report dated 31.5.1973 for the year 1972-73, mentioned that "a complaint was pending against him in the High Court about the return of ornaments in a theft case to a party which was not entitled". Further, as directed by a Single Bench of this Court by its order dated 24.7.1973 passed in Criminal Revision No. 428/72 in re: Ramavtar Vs. State, the findings of the District & Sessions Judge, Delhi, regarding the conduct of Mr. M.S. Rohilla, then working as Judicial Magistrate, First Class, were placed on his personal file. It had been noted in the aforesaid findings of the District & Sessions Judge, that Mr. M.S. Rohilla should not have shown so much indecent haste in passing the order for handing over the ornaments to Jawahar Lal Gupta. Though, the District & Sessions Judge, Delhi, did not find any malafide on the part of Mr. M.S. Rohilla, still according to him, he acted in a most injudicious manner due to his inexperience and suppression of the material facts by the S.H.O. while sending the report in the above noted case. The Ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to argue that the so-called material relied upon was only one sided view or it was not known what was the material placed before the High Court before decision to retire him compulsorily from service was taken. The High Court found that there was no force in the contention that his case could have been considered for the purpose of compulsory retirement only in the year 2001 when he was about to attain the age of 55 years in the year 2002. The High Court further concluded that it was also a wrong premise adopted by Mr. Rohilla that the High Court had based its decision solely on the basis of his ACR for the year 2000 wherein it was recorded that his integrity was doubtful. What was concluded by the High Court was that the exercise undertaken clearly revealed that his entire service record was taken into consideration. In view of the above-mentioned conclusions as well as other findings, the High Court has rejected the writ petition filed by Mr. Rohilla giving rise to the appeal by him. 22. It is relevant to notice that though each appeal will have to be decided on its own facts, certain common points were raised in three appeals by the learned counsel for the appellants for consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000 was purely tentative in nature and was not a final decision. According to the learned counsel for the High Court, the use of the expression "for the time being" in the Minutes of the Committee would show that it was not a final decision meaning thereby the matters were to be considered in detail on a later date and final decision was to be taken later on. What was maintained was that the decision of the Committee dated July 17, 2000 was not a decision dealing each officer separately but general in nature and, therefore the phrase "for the time being" should be construed to mean that it was not a final decision and the cases of the appellants were deferred for being considered in future. Elaborating this contention, it was submitted that the Division Bench of the High Court has considered the question as to whether it was consideration on merits or a case of deferment and rightly held that the exercise done in July 2000 was not final and the cases of the appellants were deferred. According to the learned counsel, the High Court, in the impugned judgment, was perfectly justified in holding that there was no consideration on merits of the cases of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in Haryana State Electricity Board Vs. K.C. Gambhir (1997) 7 SCC 85, it was pointed out that therein the case of the officer was considered at the age of 50 years and he was permitted to continue in service and again his case was considered at the age of 55 years and he was permitted to continue in service but he was compulsorily retired at the age of 57 years and such a decision was upheld by this Court by rejecting the plea that his case could have been considered only again at the age of 60 years. 26. This Court has considered the rival contentions raised by the learned counsel for the parties on the question whether the cases of the appellants for compulsory retirement, could have been considered again before they had reached the age of 55 years, when the Screening Committee had already considered their cases for compulsory retirement on their attaining the age of 50 years on July 17, 2000, and had not recommended their compulsory retirement which recommendation was accepted by the Full Court of the High Court. 27. In this connection it is relevant to notice certain facts emerging from the record of the case. Rule 27 of the Delhi Higher Judicial Service Rules, 1970 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Rule 56(j), which is applicable to officers of Delhi Judicial Service, reads as under:- "(j) Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice: (i) if he is in Group `A' or Group `B' service or post in a substantive, quasi permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years; (ii) in any other case after he has attained the age of fifty-five years. Provided that nothing in this clause shall apply to a Government servant referred to in clause (e), who entered Government service on or before the 23rd July, 1966." It would be seen that FR 56(j) gives absolute rights to the appropriate authority to retire any government servant who entered the service before attaining the age of 35 years, after he has attained the age of 50 years. 30. The cases of the officers of Delhi Higher Judicial Service and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Report dated 17.7.2000 of the Screening Committee consisting of Hon'ble Mr. Justice Arun Kumar and Hon'ble Mr. Justice S.K. Mahajan constituted pursuant to Full Court decision dated 17.01.1998. Minutes : "The report of the Committee was accepted." 34. On a fair reading of the report of the Screening Committee quoted above read with the resolution adopted by the Full Court in its meeting dated July 22, 2000, it becomes evident that the cases of the appellants alone for premature retirement were not considered but cases of all the officers of Delhi Higher Judicial Service as well as that of officers belonging to Delhi Judicial Service who were within the zone of consideration for being considered for premature retirement in public interest at the age of 50/55 years were also considered. The record of the case would indicate that cases of number of officers belonging to Delhi Higher Judicial Service and Delhi Judicial Service were considered on one day, and that too, in the Meeting of the Screening Committee held on July 17, 2000. The record indicates that case of each officer was not considered individually. No reasons could be recorded by the Screening Commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dra Mohan Nigam by a writ petition before the Allahabad High Court. The learned Single Judge had allowed the same on the grounds of contravention of the justiciable and binding rules and because the order was based on consideration of irrelevant matters and was also vitiated by bias. Feeling aggrieved both the Union of India and the State of U.P. had appealed to the Division Bench of the High Court. The Division Bench of the High Court by an order dated April 13, 1973, dismissed both the appeals by a common judgment. The Division Bench had not agreed with all the reasons given by the learned Single Judge and had quashed the order of compulsory retirement holding that the decision of the Central Government to retire Mr. Nigam was passed on collateral facts and was, therefore, invalid. 36. In appeals by certificates, this Court had noticed the service career of the respondent. It was noticed that the respondent during his service career, had the following adverse entries in his character role - (1) A warning was administered to him on December 6, 1953, for taking undue interest in the ejectment of tenants from a house owned by him at Lucknow, (2) another warning was issued to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any decision was taken by the Central Government. On January 29, 1970, the Chief Secretary to the State Government had replied that the Review Committee had considered the character roll and the merits of the case of Mr. Nigam and found that he was suitable for continuing in service, and that the decision of the Committee was accepted by the State Government. In the reply, it was mentioned that the State Government's decision in the matter was taken after thorough consideration and that the State Government did not consider it necessary to go into this question again. No adverse decision contrary to the recommendation of the State Government was taken and communicated by the Central Government to the State Government in pursuance of the recommendation of the first Review Committee in October, 1969. However, the State Government, on its own motion, constituted a second Review Committee in May 1970. Again before this Committee also the case of all the officers who had attained the age of 50 years including those whose cases had been reviewed earlier in October 1969 was also placed for consideration. Thus Mr. Nigam's case was considered again by the Second Review Committee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted by the State Government and except expressing an opinion that having regard to certain adverse remarks in his character roll, this was a fit case in which proposal for his premature retirement should have been considered, the Central Government, after receipt of reply from the State Government, had not taken any adverse decision contrary to the recommendation of the State Government, which was in turn based on the recommendation of the First Review Committee. Further, in Chandra Mohan Nigam's case itself this Court has in para 27 of the reported decision hastened to add that when integrity of an officer is in question, that will be an exceptional circumstance for which order may be passed in respect of such an officer under Rule 16(3), at any time, if other conditions of that rule are fulfilled apart from the choice of disciplinary action which will also be open to the Government. Thus an exception to the rule, that if there is consideration at the age of 50, next consideration can be only at the age of 55 is made in Chandra Mohan Nigam's case itself by holding that if material in regard to doubtful integrity of the officer comes to light, the authority need not w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Board could have taken action of compulsorily retiring the respondent from service earlier. Thus on the basis of service record, the three Judicial Officers could have been retired compulsorily from service but a tentative decision was taken not to retire them from service at that point of time. But this tentative decision would not preclude the authority concerned from passing orders of compulsory retirement later on. 41. In Government of T.N. vs. P.A. Manickam AIR 1996 SC 2250, what is ruled by this Court is that the rule permits the appropriate authority to retire any Government servant after he has attained the age of 50 years or after he has completed 25 years of qualifying service and the rule prescribes a starting point, which is the attaining of the age of 50 years or the completion of 25 years of service, but it does not prescribe a terminus ad quam and it is, therefore, open to the appropriate authority under the rule to consider the case of a Government servant for premature retirement at any time after the aforementioned starting points. Thus, after the so-called review of the cases of the two appellants and the deceased officer in July, 2000, their cases were rightl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds to hold him guity of any of the charges leveled against him. However, on August 7, 1975, a Review Committee consisting of the Chief Secretary, Home Secretary and Inspector General of Police considered various cases of police officers including that of Mr. Reddy and made recommendations. On September 11, 1975, the Government of India, after considering report of the Review Committee, ordered compulsory retirement of Mr. Reddy in public interest. Thereupon Mr. Reddy filed writ petition in the Andhra Pradesh High Court. The Single Judge allowed the petition and quashed order of compulsory retirement. That decision was upheld by the Division Bench of the High Court, in appeal filed by State of Andhra Pradesh and Union of India. Therefore, the two appeals by certificate were filed before this Court. It was argued before this Court on behalf of Mr. Reddy that the order impugned was passed on materials which were not existent inasmuch as there were no adverse remarks against Mr. Reddy who had a spotless career throughout and if such remarks had been made in his confidential reports, they would have been communicated to him under the rules. This contention was negatived in follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpreting the decision in Chandra Mohan Nigam's case, this Court in para 25 of the reported decision inter-alia observed that "we have already indicated above that this Court made it absolutely clear that when a person was retired under Rule 16(3) on the ground that his integrity was in question, the observations made by this Court would have no application." 43. Apart from the poor judicial performance, the appellants were also retired compulsorily from service, on the ground that their integrity was doubtful. 44. The mandate of Article 235 of the Constitution is that the High Court has to maintain constant vigil on its subordinate judiciary as laid down by this Court in High Court of Judicature at Bombay through its Registrars Vs. Shirishkumar Rangrao Patil and Another (1997) 6 SCC 339. In the said case, this Court has explained that the lymph nodes (cancerous cells) of corruption constantly keep creeping into the vital veins of the judiciary and need to stem it out by judicial surgery lies on the judiciary itself by its self- imposed or corrective measures or disciplinary action under the doctrine of control enshrined in Articles 235, 124(6) of the Constitution, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would apply with all the vigour to the facts of the appellants also, this Court finds that in respect of all the three officers, after the previous consideration in July, 2000, new material in the form of ACR for the year 2000 "`C' integrity doubtful" had come into existence and had become a part of their respective service records when the Full Court in its meeting held on 13.9.2001 recorded their ACRs for the year 2000. Thus the consideration by the Committee constituted for the purpose of evaluating the cases of the officers to ascertain whether they should be compulsorily retired, was subsequent in point of time, namely, on 21.09.2001 and as such it will be fully covered by the exception spelt out in Chandra Mohan Nigam's Case itself in regard to consideration of cases again before the age of 55 years. The consideration of the cases of the three judicial officers on the basis of ACRs dated September 13, 2001 recorded by the Full Court of the Delhi High Court is not a review of the earlier decision of July, 2000. It is a fresh consideration. It is review of the record of service of the officers and not review of the earlier decision and such review is not only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had in fact filed a review petition but later on withdrawn the same without seeking any liberty to agitate this point in the Special Leave Petition or in any other proceedings and therefore, he is not entitled to urge this plea. It was emphatically pointed out by the learned counsel for the High Court that in other appeals, it is not stated by the appellants that such a plea was urged before the High Court and they having not urged such a plea in the memorandum of Special Leave Petitions, the plea raised at the delayed and belated stage should not be considered by this Court. In support of this argument, the learned counsel for the respondent relied upon decisions in (a) Daman Singh and Others Vs. State of Punjab and Others, (1985) 2 SCC 670, (b) State of Punjab and Another Vs. H.B. Malhotra, (2006) 11 SCC 169, (c) Mohd. Akram Ansari Vs. Chief Election Officer and Others, (2008) 2 SCC 95 and (d) Ex-Constable Ramvir Singh Vs. Union of India and Others, (2009) 3 SCC 97. 51. Without prejudice to the above stated contention, it was argued by the learned counsel for the respondent that under Article 235, it is High Court which has to exercise supervision and control over the subordinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned they have not stated that such a point was argued on their behalf before the High Court and was not dealt with by the High Court. Under the circumstances a question arises whether the learned counsel for the appellants should be permitted to raise such a plea before this Court at the stage of final disposal of the matters. 53.Ordinarily the Supreme Court would not entertain a new prayer at the hearing of the appeal under Article 136 when it is not raised in the High Court or in the petition seeking leave to appeal. Point not raised before the High Court but taken in Special Leave Petition will not ordinarily be allowed to be agitated before this Court. The consistent practice of this Court is that the Court does not permit a party to raise a new point which has not been argued before the High Court. However, there are exceptional cases in which this Court may permit a party to raise a new plea before this Court for the first time, for example, where the plea raised does not require investigation of new facts or where the question raised is a pure question of law or where the point is likely to be raised in future affecting such cases or where the respondent has dealt with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment) Act, 1991 which is February 1, 1992 the Union Territory of Delhi shall be called the National Capital Territory of the Delhi and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor. Sub-clause (2) deals with the constitution of Legislative Assembly for the National Capital Territory and total number of seats of the assembly etc. Sub-clause (3) of the Article confers power on the Legislative Assembly to make laws for the whole or any part of the National Capital Territory. Sub-clause (4) with which the court is concerned, inter alia provides that there shall be a Council of Ministers consisting of not more than ten per cent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion. 57. A meaningful and conjoint reading of Article 163 of the Constitution makes it clear that the Governor has to act on aid and advice of the Council of Ministers wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Subordinate Courts. 58.The scheme envisaged by the Constitution does not permit the State to encroach upon the area reserved by Articles 233, 234 and first part of Article 235 either by legislation or rules or executive instructions. 59.Article 235 has no concern with the conferring of jurisdiction and powers on the Court but it only relates to administrative and disciplinary jurisdiction over the subordinate Courts. Therefore, the conferment of power of the prescribed authority by the State Legislature on the Judicial Officers cannot be construed to mean that the power of the High Court under Article 235 is inoperative or inchoate as High Court alone is the sole authority competent to initiate disciplinary proceedings against Subordinate Judicial Officers or to impose various punishments including passing of order of compulsory retirement on verification of the service record. The State is least competent to aid and advise Governor on such subjects. While the High Court retains the power of disciplinary control over the subordinate judiciary including power to initiate disciplinary proceedings, suspend them during enquiries and impose punishment on them, but when it comes to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtended till the inquiry proceedings commenced by the notice under Rule 9 came to an end. 63.The second contention on behalf of Ishwar Chand Agarwal that termination of his service was by way of punishment on the basis of charges of gross misconduct by ex-parte enquiry conducted by the Vigilance Department found favour with this Court. 64.This Court accepted the plea that the termination of his services was based on the findings of misconduct contained in about eight complaints, which were never communicated to him and High Court had abdicated the control vested in it under Article 235 by not having an enquiry through judicial officers subordinate to the control of the High Court, but asking the Government to enquire through the Vigilance Department. 65.The abdication of the control over the subordinate judiciary by the High Court under Article 235 in favour of the Government and the stand of the State that the High Court wanted the Government to be satisfied about the suitability of Mr. Agarwal was found to be something obnoxious and had annoyed and shocked this Court. Therefore, this Court, without mincing the words, authoritatively, clearly and for future guidance of one and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... answer. On April 29, 1967, the services of the appellant were terminated. Shamsher Singh, in the context of the Rules of Business, contended that the removal of a Subordinate Judge from service was a personal power of the Governor and was incapable of being delegated or dealt with under the Rules of Business. This Court held that the Governor can allocate the business of the Government to the Ministers and such allocation is no delegation and it is an exercise of executive power by the Governor through the Council or officers under the Rules of Business. Therefore, the contention of the appellant that the order was passed by the Chief Minister without the formal approval of the Governor was found to be untenable and it was held that the order was of the Governor. Thereafter, this Court noted the contents of the show- cause notice, reply given to the said notice by the appellant, protection granted by Rule 9, etc. and held that it was clear that the order of termination of services of Shamsher Singh was one of punishment and set it aside. In the light of the contention raised on behalf of Shamsher Singh in the context of the Rules of Business, this Court, in para 88 of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appointments in accordance with seniority. Those officers whose names were recommended by the High Court filed a writ petition under Article 226 challenging validity of the appointments. The Court granted a stay of operation of the appointment order pending disposal of the matter regarding admissibility of the petition. But ultimately in view of the agreement between the parties, the High Court declined to hear the petition on the ground of judicial propriety and vacated the order of stay and granted a certificate of fitness to the petitioners to file an appeal in the Supreme Court, holding that the point involved in the writ petition relating to the interpretation of Section 109 of the Constitution of Jammu and Kashmir, raised a substantial question of law of general public importance and the case was a fit one in which a certificate of fitness should be granted. Against this order the State filed a special leave to appeal in this Court. The petitioners also filed a writ petition under Article 32 substantially for the same reliefs claimed in their earlier writ petition under Article 226. Allowing the aggrieved officers appeal with costs against the State Government, this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e/Chief Judicial Magistrate and that he might be allowed to continue in service till the age of 58 years. The State again sought recommendation about his retirement. The High Court recommended against compulsory retirement. The State Government did not agree and retired the respondent compulsorily. The High Court in a Writ Petition filed by the respondent quashed the order. In appeal this Court examined the scope of Article 235 of the Constitution and held that control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including dismissal, removal, reduction in rank and the initial posting and of the initial promotion to District Judges. According to this Court when a case is not of removal or dismissal or reduction in rank, any order in respect of exercise of control over the judicial officers is by the High Court and cannot be by any other authority. What is explained by this Court is that there cannot be dual control and if the State Government is to have the power of deciding whether a judicial officer should be retained in service after attaining the age of 55 years up to the age of 58 years, that will s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade out against the appellant and that he should be exonerated. The Governor accepted the advice of the Commission and passed the order for reinstatement. The High Court, however, did not issue any posting order as it regarded the order of reinstatement by the Governor illegal. It even requested the Government to review its order. 72.Thereupon the appellant filed a writ petition praying for a writ of mandamus directing the high Court to issue an appropriate order of posting and also for a mandamus directing the Government to disburse full salary to him and other consequential reliefs. While the writ petition was pending the Governor compulsorily retired him. Subsequently a Full Bench of the High Court delivered its judgment holding the order of reinstatement violative of Article 235, for the Governor was bound to accept the recommendation of the High Court as regards the subordinate judiciary. Therefore, the appellant preferred an appeal before this Court. Three questions were considered by this Court in the said case - (1) whether the Government is bound under the Constitution to accept the recommendation of the High Court and to pass an order of removal of the judicial officer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor as the head of the State administration and, therefore, when the High Court exercising disciplinary control over the subordinate judiciary finds, after a proper enquiry, that a certain officer is guilty of gross misconduct and is unworthy to be retained in judicial service and, therefore, recommends to the Governor his removal or dismissal, it is difficult to conceive how and under what circumstances such a recommendation should be rejected by the Governor acting with the aid and advice of the Council of Ministers or, as is usually the case, of one of the ministers. It is explained by this Court in the said decision that in this context more than once the Supreme Court has observed that the recommendation of the High Court in respect of judicial officers should always be accepted by the Governor, and this is the inner significance of the constitutional provisions relating to the subordinate judiciary. This Court further noted that whenever in an extraordinary case, rare in itself, the Governor feels, for certain reasons that he is unable to accept the High Court's recommendations, these reasons will be communicated to the High Court to enable it to reconsider the matter, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the matter and held that the High Court was perfectly justified in quashing orders of compulsory retirement. However, this Court considered the scope of Article 235 of the Constitution and held that the test of control is not the passing of an order against a member of the subordinate judicial service, but the power to take such decision and action. The Court explained that so far as the members of the subordinate judicial service are concerned, it is the Governor, who being the appointing authority, has to pass an order of compulsory retirement or any order of punishment against such a member, but passing or signing of such orders by the Governor will not necessarily take away the control of the High Court vested in it under Article 235 of the Constitution. This Court further explained that an action against any Government servant consists of two parts. Under the first part, a decision will have to be made whether an action will be taken against the Government servant and in the second part, the decision would be carried out by a formal order. Having explained this, this Court proceeded to hold that the power of control envisaged under Article 235 of the Constitution relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Registrar, High Court of Madras (supra), this Court has referred to the decision of Shamsher Singh (supra), and has thereafter ruled that Governor has to act in accordance with the recommendation of the High Court by passing an order in accordance with the decision of the High Court and the Governor cannot take any action against any member of the judicial service without and contrary to the recommendation of the High Court. 77. This Court further finds that in Registrar (Admn.) High Court of Orissa, Cuttack (Supra), decision of Orissa High Court on administrative side was required to be forwarded to the Governor for passing an order of the compulsory retirement but this was not done, and an order of compulsory retirement was passed by the High Court itself. This decision was challenged before the high Court on judicial side. The writ petition was decided in favour of judicial officers holding that the order dated February 5, 1987 compulsorily retiring them was bad in law. In appeal, this Court considered the scope of Articles 233 to 235 of the Constitution as well as Articles 55 and 368 in the light of basic feature of the Constitution namely independence of the judiciary. Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant, an Additional District and Sessions Judge. On July 8, 1968 the Administrative Judge agreed with the proposal of premature retirement after giving three months' notice. The Governor passed the order of retirement on August 24, 1968. Three days thereafter, on August 27, 1968 the Administrative Committee of the High Court gave its approval to the recommendation of the Administrative Judge earlier communicated to the State Government. Thereafter on August 30, 1968 the Additional Registrar transmitted the order of retirement to the appellant. It was actually served on the appellant on September 3, 1968. The question for consideration in this case before this Court was whether the order of compulsory retirement passed against the appellant satisfied the requirements of the Constitution. While allowing the appeal, this Court held that the impugned order of premature retirement passed by the Governor without having before him the recommendation of the Administrative Committee or of the Full Court was void and ineffective. What is ruled is that it is for the High Court, on the basis of assessment of performance and all other aspects germane to the matter to come to the conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the matter only on the aid and advice of his Council of Ministers. Thus the order of the Lt. Governor compulsorily retiring the appellants without seeking aid and advice of his Council of Ministers is neither ultra vires nor illegal and is rightly sustained by the High Court. The Governor could not have passed any order on the aid and advice of Council of Ministers in this case. The advice should be of no other authority except that of the High Court in the matter of judicial officers. This is the plain implication of Article 235. Reliance on Article 239AA(4) is entirely out of place so far as the High Court is concerned, dealing with the judicial officers. To give any other interpretation to Article 239AA(4) will be to defeat the supreme object underlying Article 235 of the Constitution, specially intended for protection of the judicial officers and necessarily independence of the subordinate judiciary. It is absolutely clear that the Governor cannot take the aid and advice of his Council of Ministers in the case of judicial officers and accept its advice and act according to it. There is no room for any outside body between the Governor and the High Court. Therefore, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken to retire him compulsorily from service and, therefore, the order retiring him compulsorily from service was illegal. 85.In Appeal arising out of Special Leave Petition No. 314 of 2009 it was contended on behalf of P.D. Gupta that the Full Court had recorded remarks `C-Integrity Doubtful' for the year 2000, in his case, which was communicated to him vide letter dated September 22, 2001 and he was asked to file his representation against the remarks within six weeks, but without waiting for the representation to be filed by him, the High court upon the adverse remarks of 2000 had recommended his premature retirement to the Lt. Governor under F.R. 56(j) read with Rule 33 of the DJS Rules, and therefore the order retiring him from service should have been set aside by the High Court. 86.As against this it was emphasized on behalf of the respondents that this Court not only has taken the view that a single adverse entry reflecting on the integrity of the officer is sufficient because there has to be constant vigil by the High Court over subordinate judiciary but this Court has further taken the view that it is not necessary that such an entry should have been communic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e will not amount to an order for dismissal or removal as there is no element of punishment. Fourthly, an order of compulsory retirement will not be held to be an order in the nature of punishment or penalty on the ground that there is possibility of loss of future prospects, namely, that the officer will not get his pay till he attains the age of superannuation, or will not get an enhanced pension for not being allowed to remain a few years in service and being compulsorily retired. So far as the present cases are concerned, this Court finds that there are no words in the orders of compulsory retirement, which throw any stigma against the two appellants and the deceased officer. Therefore, it is not necessary for this Court to make inquiry into the Government files to discover whether any remark amounting to stigma could be found in the files. The reason is that it is the order of compulsory retirement, which alone is for examination. If the order itself does not contain any imputation or charge against the two appellants and the deceased officer, the fact that considerations of misconduct or misbehaviour weighed with the High Court in coming to its conclusion to retire them comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing is not necessary before adverse remarks because adverse remarks by themselves do not constitute a penalty. However, when the order of compulsory retirement is passed, the authority concerned has to take into consideration the whole service record of the officer concerned which would include non- communicated adverse remarks also. Thus it is settled by several reported decisions of this Court that un- communicated adverse remarks can be taken into consideration while deciding the question whether an official should be made to retire compulsorily or not. 91. In State of U.P. and Another Vs. Bihari Lal (1994) Supp (3) SCC 593, this Court has taken the view that even an adverse entry which has been set aside in appeal on technical grounds could also be taken into consideration. The plea that since the last entry, i.e., `C-Integrity Doubtful' for the year 2000 was communicated almost around the same time when the order of compulsory retirement was communicated and as the appellants had no opportunity to represent against the same, it ought not to have been taken into consideration and that the consideration of the said last adverse entry vitiates the order of compulsory ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present cases, this Court finds that the authorities concerned were justified in relying upon the adverse entry made against the two appellants and the deceased officer in the year 2000 indicating that their integrity was doubtful alongwith other materials. Here in these cases, the ACRs for the year 2000 were communicated to the three officers but before they could exercise the option given to them to make representation against the same, the orders of compulsory retirement were passed. When an uncommunicated adverse entry can be taken into consideration, while passing order of compulsory retirement, there is no reason to hold that adverse entry communicated, against which opportunity of making representation is denied, cannot be taken into consideration at the time of passing order of compulsory retirement. Merely because the two appellants and the deceased officer had no opportunity to make representation against the said entry or that the representation made against the same was pending, would not render consideration of the said entry illegal, in any manner, whatsoever. 93. In Baidyanath Mahapatra Vs. State of Orissa and Another (1989) 4 SCC 664, the Review Committee constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s compulsorily retired him. The Bhubaneswar Administrative Tribunal disapproved the taking into consideration of the remarks for the first year but sustained the impugned order of compulsory retirement on the basis of remarks for the subsequent years. While allowing the appeal this Court observed that adverse entries for the years 1981-82 and 1982-83 could not have been taken into consideration for the premature retirement of the appellant, and the Review Committee should have deferred the consideration of his case till his representation against the aforesaid adverse entries was disposed of or in the alternative the State Government itself should have considered and disposed of the representation before issuing the order for premature retirement. However, in this case also, this Court finds that this was not a case of consideration of adverse entry relating to the integrity of the officer concerned. 95. Though the learned counsel for the appellants have relied upon decision in V.K. Jain Vs. High Court of Delhi through Registrar General and Others, (2008) 17 SCC 538, this Court finds that basically the said decision deals with expunction of adverse remarks made by the High Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retiring an employee compulsorily from service. The appellants in the appeals were compulsorily retired by the Government of Orissa in exercise of the power conferred upon it by the first Proviso to sub-rule (a) of Rule 71 of the Orissa Service Code. The appellant Mr. Baikuntha Nath Das was appointed as a Pharmacist by the Civil Surgeon, Mayurbhanj on March 15, 1951. By an order dated February 13 1976 the Government of Orissa had retired him compulsorily. The said Order was challenged by him in the High Court of Orissa by way of a Writ Petition. His case was that the order was based on no material and that it was the result of ill-will and malice, the Chief District Medical Officer bore towards him. According to him he was transferred by the said officer from place to place and was also placed under suspension at one stage, but his entire service had been spotless and that at no time were any adverse entries in his confidential character rolls communicated to him. In the counter affidavit filed on behalf of the Government it was submitted that the decision to retire him compulsorily was taken by the Review Committee and not by the Chief Medical Officer and it was stated that beside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Vs. M.E. Reddy (1980) 2 SCC 15, this Court has laid down following firm proposition of law stated in paragraph 34 of the reported decision: "34. The following principles emerge from the above discussion: (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 justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary -- in the sense that no reasonable 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 en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for which no Rule exists in DJS rules and, therefore, premature retirement of the appellants could not have been ordered before they attained the age of 58 years. 101.The learned counsel for the High Court argued that this point was given up before the High Court and, therefore, the Court should not permit the appellants to agitate the same in appeals arising from grant of special leave. In support of this submission reliance was placed by the learned counsel for the High Court on: (1) State of Maharashtra Vs. Ramdas Shrinivas Nayak & Anr., (1982) 2 SCC 463, (2) Shankar K. Mandal & Ors. Vs. State of Bihar & Ors., (2003) 9 SCC 519, (3) Mount Carmel School Society Vs. DDA, (2008) 2SCC 141, and (4) Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. & Ors., (2003) 2SCC 111. 102.Without prejudice to the above contention, it was argued by the learned counsel for the High Court that in All India Judge's Association Vs. Union of India & Ors., (1992) 1 SCC 119, this Court directed that the age of retirement of the judicial officers be increased to 60, and when a review was filed, this Court in All India Judges' Association and others vs. Union of India and others (1993) 4 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by December 31, 1992." 105.In Second All India Judge's Association & Others Vs. Union of India & Others, (1993) 4 SCC 288, this Court clarified in paragraph 30 of the said judgment as under : "The benefit of the increase of the retirement age to 60 years, shall not be available automatically to all judicial officers irrespective of their past records of service and evidence of their continued utility to the judicial system...................The potential for continued utility shall be assessed and evaluated by appropriate Committees of Judges of the respective High Courts constituted and headed by the Chief Justice of the High Courts and the evaluation shall be made on the basis of the judicial officer's past record of service, character rolls, quality of judgments and other relevant matters." 106.In paragraph 31 of the reported decision this Court has inter alia observed that the standard of evaluation shall be as applicable to compulsory retirement. However what is relevant to notice is paragraph 52 wherein this Court observed and directed as under:- "The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retirement that might have to be undertaken under the relevant Service Rules at the earlier stage/s. The clarification made by this Court in All India Judge's Association case No. 2 leaves the matter in no doubt that the independent assessment for compulsory retirement to be undertaken under the relevant Service Rules is not affected at all in any manner whatsoever. It is true that the performance of a judicial officer is to be evaluated for determining his utility to continue in service upto the age of 60 years but it is wrong to contend that Rule 31 overrides Rule 33, which deals with residuary matters which includes compulsory retirement of a judicial officer after he attains the age of 50 years. It is rightly contended by the learned counsel for the High Court that Rule 31A has bearing and impact in deciding the question whether the order of compulsory retirement against the appellant in terms of Rule 33 read with F.R. 56(j) is valid or not. The newly added rule does not deal with the aspect of compulsory retirement at all. In terms of Rule 33 the subject of compulsory retirement did remain residuary even after the introduction of Rule 31A in DJS Rules and, therefore, the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The oral communication by members of the Bar or by office bearers of the Bar Association was thoroughly irrelevant in the absence of particulars mentioned in the ACR and, could not have been taken into consideration while passing order of compulsory retirement. 111.On behalf of the appellant Mr. P.D. Gupta, it was contended that for the year 2000 Hon'ble Mr. Justice M.S.A. Siddique was appointed as Inspecting Judge by the High Court but Hon'ble Mr. Justice Siddique had retired on 29.5.2001 without giving any Inspection Report and he had not inspected his Court during the year at all, whereas during the year 2001, three Judges had been appointed as Inspecting Judges namely Hon'ble Mr. Justice Dalveer Bhandari (as he then was), Hon'ble Mr. Justice Mukul Mudgal (as he then was) and Hon'ble Mr. Justice R.C. Chopra, but the report for the year 2000 in his respect was given by Hon'ble Mr. Justice K.S. Gupta who was not the Inspecting Judge either for the year 2000 or for the year 2001 and as Hon'ble Mr. Justice Gupta had visited his Court on 7.9.2001 and stayed only for ten minutes and asked him to send three judgments delivered in the year 2000 which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "C Doubtful Integrity" for the years 1994 and 1995, against which Special Leave Petition filed by Mr. P.D. Gupta was also dismissed after which Review Petition was filed by him against the judgment of the Division Bench in Letters Patent Appeal, which was also dismissed and thus those entries having become final, it would be wrong to contend that order of compulsory retirement passed in his case was liable to be set aside. 115.On consideration of rival submissions, this Court finds that there is no manner of doubt that the nature of judicial service is such that the High Court cannot afford to suffer continuance in service of persons of doubtful integrity. Therefore, in High of Judicature at Bombay Through its Registrar Vs. Shirishkumar Rangrao Patil and Another, (1997) 6 SCC 339, this Court emphasized that it is necessary that there should be constant vigil by the High Court concerned on its subordinate judiciary and self introspection. It is well settled by a catena of decisions of this Court that while considering the case of an officer as to whether he should be continued in service or compulsorily retired, his entire service record upto that date on which conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court against the judgment of the learned Single Judge by which the ACRs for two years were set aside, which are as follows: - "To summarize, it is held: a) The adverse remarks recorded by the High Court in the Confidential Reports of respondent No.1 for the years 1994 and 1995 were not without any `material'. They were recorded on the basis of material on record and the judgment of the learned Single Judge quashing those remarks is hereby set aside. b) The learned Single Judge should not and could not have graded B+ to respondent No.1 as it is the function of the High Court to assign appropriate grading. Therefore, the matter should have been referred to the Full Court for giving appropriate grading. This direction of the learned Single Judge is accordingly set aside. c) Direction of the learned Single Judge in treating the petitioner as promoted w.e.f. 18th May, 1996 is not correct in law and is therefore, set aside." 117.The above findings would indicate that the appellant Mr. Gupta is not justified in arguing that there was no material on the basis of which adverse entries could have been made against him for the years 1994 and 1995 nor is he justifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the judicial officer. Such an evidence may not be forthcoming in such cases. 120.As observed by this Court in R.L. Butail Vs. Union of India and Others, (1970) 2 SCC 876, it is not necessary that an opportunity of being heard before recording adverse entry should be afforded to the officer concerned. In the said case, the contention that an inquiry would be necessary before an adverse entry is made was rejected as suffering from a misapprehension that such an entry amounts to the penalty of censure. It is explained by this Court in the said decision that making of an adverse entry is not equivalent to imposition of a penalty which would necessitate an enquiry or giving of a reasonable opportunity of being heard to the concerned Government servant. Further in case where the Full Court of the High Court recommends compulsory retirement of an officer, the High Court on the judicial side has to exercise great caution and circumspection in setting aside that order because it is a complement of all the judges of the High Court who go into the question and it is possible that in all cases evidence would not be forth coming about doubtful integrity of a Judicial Officer. 121.As obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adverse entry regarding integrity of a judicial officer. There is no manner of doubt that the authority which is entrusted with a duty of writing ACR does not have right to tarnish the reputation of a judicial officer without any basis and without any `material' on record, but at the same time other equally important interest is also to be safeguarded i.e. ensuring that the corruption does not creep in judicial services and all possible attempts must be made to remove such a virus so that it should not spread and become infectious. When even verbal repeated complaints are received against a judicial officer or on enquiries, discreet or otherwise, the general impression created in the minds of those making inquiries or the Full Court is that concerned judicial officer does not carry good reputation, such discreet inquiry and or verbal repeated complaints would constitute material on the basis of which ACR indicating that the integrity of the officer is doubtful can be recorded. While undertaking judicial review, the Court in an appropriate case may still quash the decision of the Full Court on administrative side if it is found that there is no basis or material on which the ACR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. Therefore, the contention that without material or basis the adverse entries were recorded in the ACR of the appellants cannot be upheld and is hereby rejected. 125.On behalf of deceased R.S. Verma his learned Counsel had argued that ACRs for the years 1997, 1998 and 1999 were written in one go which is arbitrary and constitute malice in law. Pointing out to the Court that normal procedure followed by the Delhi High Court for communicating the ACRs is referred to in the circular dated 4.9.1998, according to which conducting of inspection and making of enquiries before condemning a judicial officer as regards his integrity is necessary, but this was not done in the case of the deceased and, therefore, his ACRs for the years 1997, 1998 and 1999 should have been ignored while deciding the question whether he was fit to be retained in service on attaining the age of 50 years. It was emphasized that all the entries should be communicated within a reasonable period so that the employee concerned gets an opportunity to make representation and that the representation is also decided fairly within a reasonable period, but this was not done in the case of the deceased officer. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ACRs for more than one years are recorded at one point of time, the same are bad or that they would cease to be ACRs for the relevant years or that they should not be taken into consideration for any purpose or for the purpose of compulsory retirement. As stated earlier, in the normal course it would not be appropriate to record the ACRs of number of years at one point of time. However, at the same time it is not possible to lay down as an absolute proposition of law that irrespective of good, cogent, plausible and acceptable reasons, recording of ACRs of number of years at once should always be regarded as illegal and bad for all purposes. This Court, while deciding the appeals, has gone through the record of the deceased officer, and other relevant documents produced by the High Court. From the record, this Court finds that all the columns of ACR forms for the years 1997, 1998 and 1999 were filled up by the inspecting judges respectively well in time for all these years, but the inspecting judges had not recorded any remarks concerning the judicial reputation for honesty and impartiality of the deceased officer as a corollary the column regarding "Net Result" for thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of 50 years, is hereby rejected. Even if it is assumed for the sake of argument that ACRs recorded for the three years, i.e., 1997, 1998 and 1999 recorded at one go, irrespective of reasons, good, bad or indifferent, must be ignored for all time to come and for all the purposes, this Court finds that the ACRs for the year 1999 were recorded with promptitude and without any delay in the year 2000. It is not argued on behalf of the deceased officer that there was any delay in recording ACRs for the year 1999. For the year 1999, the deceased officer was assessed as "C Below Average". The ACRs for the year 1999 could have been taken into consideration while assessing the service record of the deceased officer for determining the question whether the deceased officer was fit to be continued in service on his attaining the age of 50 years. What is the effect of ACRs for the year 1999 when taken into consideration along with other service record is proposed to be considered at a little later stage. 128.On behalf of deceased officer Mr. R.S. Verma, it was argued that Mr. Verma's ACRs for the years 1997, 1998 and 1999, which were written at one go and also were communicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Delhi Higher Judicial Service and such an order could have been passed only under Rule 27 of the Delhi Higher Judicial Service read with Rule 16 of the Indian Administrative Services and, therefore, the same should be set aside. It is rightly pointed out by the learned counsel for the High Court that though the said plea was raised by Mr. Rohilla the same was given up before the High Court, and it is so recorded by the Division Bench in paragraph 31 of the impugned judgment. Thus, in normal circumstances, Mr. Rohilla would not be justified in arguing the same point before this Court. However, even if it is taken for granted that he is entitled to argue the point before this Court because it is a pure question of law, this Court does not find any substance what so ever in the same. What is relevant to be noticed is that under both the Rules there is power to compulsorily retire a judicial officer after he attains the age of 50 years in public interest. Therefore, whether the Lt. Governor had invoked FR 56 (j) or Rule 27 of the DJS is of little consequence since both the Rules make provision for retirement of a judicial officer compulsorily from service after he attains the age o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a serious matter and such a drastic order would not have been passed unless the judicial work performed by him was found to be shocking and perverse. Later on, all work including administrative work was withdrawn from him. Further, pursuant to the decision taken by the Full Court in its meeting held on April 21, 2001 referring the matter to a Committee of Judges to make inquiry into his work and conduct, the Committee had submitted its report dated September 8, 2001 in which it was observed and recorded that he did not enjoy good reputation and integrity. There was gradual down fall in his performance as a judicial officer. The service record of the deceased officer is so glaring that on the basis thereof any prudent authority could have come to a reasonable conclusion that it was not in the public interest to continue him in service and that he should be compulsorily retired from service. Therefore, the order of compulsory retirement passed against the deceased officer is not liable to be set aside. 133.So far as Mr. Rohilla is concerned, he was appointed as a Civil/Sub-Judge in the Subordinate Judicial Services on May 5, 1972. On June 17, 1995, he was confirmed as an officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 1997. Again on September 26, 1997, the Full Court of Delhi High Court had recorded his ACR for the year 1996 as "B". Against rejection of his representation, which was made with reference to ACRs for the year 1994- 95, he had filed Writ Petition (C) No. 4334 of 1997 and in the said writ petition he had made a grievance for his non- promotion to Delhi Higher Judicial Service. Pending the said petition, on May 22, 1998, the Full Court had recorded his ACR for the year 1997 as "B". The writ petition filed by Mr. Gupta was allowed by a Single Judge of the High Court, which decision was set aside in L.P.A. No. 329 of 1999, filed by the High Court administration, and the order passed by the Division Bench was ultimately upheld by this Court when the special leave petition filed by Mr. Gupta against the decision rendered in the L.P.A. was dismissed. In his ACR for the year 2000, he was categorized as an officer having doubtful integrity. Thus, the record shows that for the year 1994-95 his integrity was found to be of doubtful character. For rest of the years, his performance was that of an average officer and in the year 2000, his integrity was again found doubtf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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