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TMI Blog1999 (2) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... ansformation is so complete and real that even though they themselves were part of the decision making process, they quash their own administrative decisions in exercise of their power of judicial review and thus maintain the majesty and independence of the Indian judiciary in which the people have always reposed tremendous faith. In the instant case, however, the order of compulsory retirement dated 2.8.1997 passed by the State Government on the High Court's recommendation has been upheld and it has fallen to our lot, in this appeal, to scrutinise the validity of this order. 3. Before coming to the merits of the case, we may scan the service record of the appellant who joined the Judicial Service as Temporary Munsif on 15.5.1975. He was confirmed on that post on 8.2.1980 and was promoted to the rank of Sub-Judge with effect from 16.5.1985. He was confirmed as Sub-Judge on 19.1.1988. The appellant was promoted to the Superior Judicial Service in 1991 and was put to officiate as Addl. District Sessions Judge with effect from 15.7.1991. He was not, till the date of his compulsory retirement, confirmed on that post. 4. The character roll entries, as recorded by District Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of occurrence and the fact that the prosecution party had sustained grievous injuries which cannot be said to be manufactured or self- inflicted, before coming to the final conclusion. Such a consideration was all the more necessary because the opposite party were seeking the privilege of prearrest bail. It does not give correct message to the public if persons accused of causing grievous injuries on vital parts of the body do not even surrender to custody and are granted anticipatory bail. Even if in the matter of cancellation of bail, the court should not make distinction between the anticipatory bail and regular bail; nevertheless if the superior court find that the exercise of discretion itself was not proper, subverting the people's faith in the administration of criminal justice, it is its duty to intervene and set aright the wrong. Besides, as stated above, there are also allegations that the opposite party have been holding out threats to the petitioner, his family members and the prosecution witnesses and the attitude of the police is not helpful. (Emphasis Supplied) 8. In pursuance of the direction issued by the learned Judge, the office put up a note which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This representation was rejected by the High Court on 12.12.1997. 14. The order of compulsory retirement, as pointed out above, was challenged before the High Court in a Writ Petition filed under Article 226 of the Constitution but the pleas raised by the appellant were turned down and the Writ Petition was dismissed. 15. Learned Counsel for the appellant has contended that the appellant was an honest, hardworking and sincere officer who had not, at any time, been given any adverse remark and his integrity, at no stage, was ever doubted. It is contended that an order passed by him on the judicial side by which bail was granted to certain accused in a case under Section 307 IPC specially when there was a cross case also, could not be made the basis of an order of compulsory retirement. It is also contended that there was no material on the basis of which the High Court could recommend compulsory retirement. The whole decision making process, it is claimed, was conducted in an arbitrary manner. 16. Learned Counsel appearing on behalf of the High Court as also the State of Bihar have vehemently contended that the High Court having resolved to compulsorily retire the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 237 gives power to the Governor to apply, by public Notification, the provisions of this Chapter and the Rules made thereunder to any class or classes of Magistrates. Once such a Notification is issued, the provisions of Articles 234, 235 and 236 will become applicable to those Magistrates and they would become members of the 'judicial service' under the control of the High Court. In order to ensure their independence, the control over the subordinate courts has been vested in the High Court under Article 235 which provides as under: Control over subordinate Courts - The control over district Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law. 21. Und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of trust and confidence between the Governor and the High Court. The High Court cannot act arbitrarily in giving its opinion to the Governor or else it will be a betrayal of that trust. If the advice is not supportable by any material on record and is arbitrary in character, it may not have any binding value. 26. It has already been pointed out by this Court in Registrar, High Court of Madras v. R. Rajiah AIR1988SC1388 that though the High Court, in its administrative jurisdiction, has the power to recommend compulsory retirement of a member of the Judicial Service in accordance with the rules framed in that regard, it cannot act arbitrarily and there has to be material to come to a decision that the officer has outlived his utility. It was also pointed out in this case that the High Court while exercising its power of control over the subordinate judiciary is under a constitutional obligation to guide and protect judicial officers from being harassed or annoyed by trifling complaints relating to judicial orders so that the Officers may discharge their duties honestly independently unconcerned by the ill-conceived or motivated complaints made by unscrupulous lawyers and l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unter affidavit filed by the respondents. These were communicated to the appellant on 29.11.1996 and were considered by the Full Court on 30.11.1996 but it is clear that these entries were recorded at a stage when the Standing Committee had already made up its mind to compulsorily retire the appellant from service as it had directed the office, on 06.11.1996, to put up a note for compulsory retirement of the appellant. The High Court should have considered that all entries prior to his promotion to Superior Judicial Service were not bad and his integrity either as a member of the Inferior Judicial Service or Superior Judicial Service was never doubted. The grant of anticipatory bail in a case under Section 307 IPC particularly when there was a cross case could not have been legally made the basis of compulsory retirement in the particular circumstances of this case. Whatever might have been the feeling of the learned Judge who entertained and ultimately allowed the petition for cancellation of bail granted by the appellant, the by the fact remains that it was an order passed on the judicial side in all bona fides. It may have been a wrong order but it was not a motivated order base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th these decisions were considered by a Three-Judge Bench in Baikuntha Nath Das's case (supra) and were over-ruled and the following five principles were laid down: (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior. (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 entire record of service before taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this account alone, the action under F.R. 56(j) need not be held back. There is no reason to presume that the Review Committee or the government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an opportunity to explain or rebut the same. Similarly, if any representation made by the government servant is there, it shall also be taken into consideration. We may reiterate that not only the Review Committee is generally composed of high and responsible officers, the power is vested in government alone and not in a minor official It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action. Such an unlikely situation, if indeed present, may be indicative of malice in law. We may mention in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action. (Emphasis supplied) 37. These observations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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