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Judgment
The petitioner, who is a member of the U.P. Higher Judicial Service, has challenged his order of compulsory retirement dated 8.6.2006.
The facts giving rise to the present writ petition are that the petitioner was initially inducted into the U.P. Judicial Services as Additional Munsif on 5.8.1985. Thereafter, the petitioner was promoted as Civil Judge and posted as Additional Chief Judicial Magistrate on 18.10.1994. On 30.10.2001, the petitioner was promoted as Additional District & Sessions Judge under Rule 22(3) of the U.P. Higher Judicial Service Ruels, 1975 (hereinafter referred to as the ''Rules'' for short) and was posted in Fast Track Court.
The petitioner''s case was subsequently considered for regular promotion on the post of Additional District & Sessions Judge and vide order dated 13.4.2005 he was promoted to the post of Additional District & Sessions Judge on regular basis under Rule 22(1) of the Rules. The petitioner was subsequently retired compulsorily by means of order dated 8.6.2006.
The petitioner has challenged the aforesaid order, interalia, on various grounds.
The learned counsel for the petitioner has submitted that there was no material available in the service record to retire the petitioner compulsorily. Further, the entries which have been made the basis for retiring the petitioner compulsorily stood expunged or modified on the basis of orders passed by the Court. The entries prior to the promotion of the petitioner on the post of Additional District & Sessions Judge, which is based on senioritycummerit criteria, could not have been taken into consideration for retiring the petitioner compulsorily. The only ground for retiring the petitioner was shortfall in quota but there was no shortfall after the petitioner has been promoted on the post of Additional District & Sessions Judge on regular basis and that fact has been overlooked by the Court while retiring the petitioner. The shortfall in quota was due to disposal of old cases and the circular of the Court dated 8.11.1990 lays more stress on quality of work rather than quantity of work. Clause 6 and Clause 18 of the said circular also emphasize that those officers who are not giving preference to old cases may not be considered fit for promotion or confirmation. The record reveals that the petitioner has taken utmost care of the same and has paid due attention for disposal of old cases. Certain time was necessarily required to be devoted to old cases, as such there was some shortfall of quota but that shortfall stood condoned by the Court on explanation of the petitioner. The petitioner has been retired illegally and his order of compulsory retirement cannot be sustained looking to the law propounded by the Apex Court in various cases.
The learned counsel for the petitioner has relied upon (1) Brij Mohan Singh Chopra v. State of Punjab, AIR 1987 SC 948, (2) The Registrar, High Court of Madras v. R. Rajiah, AIR 1988 SC 1388, (3) Baikuntha Nath Das and others v. Chief District Medical Officer, Baripoda and another, (1992) 2 SCC 299, (4) S.Ram Chandra Raju v. State of Orissa, AIR 1995 SC 111, (5) R.C.Sood v. High Court of Judicature at Rajasthan and others, (1998) 5 SCC 493, (6) State of Gujrat and others v. Suryakant Chunilal Shah, (1999) 1 SCC 529, (7) Madan Mohan Choudhary v. State of Bihar and others, (1999) 3 SCC 396, (8) High Court of Punjab & Hariyana through R.G. v. Ishwar Chand Jain and others, (1999) 4 SCC 579, (9) Mahesh Chand Agrawal v. State of U.P. and others, 2006 (24) LCD 973, (10) Jayata Prasad v. State of U.P. and another, 1998 (16) LCD 447.
In support of his contention that merit cannot be wiped out totally and has to be taken into consideration and is a compelling factor while making promotion on senioritycummerit as contemplated under Rule 20(3) of the Rules, the learned counsel for the petitioner has also relied upon (1) The State of Mysore and another v. Syed Mahmood and others, AIR 1968 SC 1113, (2) B.V. Sivaiah and others v. K. Addanki Babu and others, (1998) 6 SCC 720, (3) Ved Prakash and others v. State of Haryana and others, (2002) 10 SCC 359, (4) K. Samantaray v. National Insurance Co. Ltd., (2004) 9 SCC 286.
He has submitted that the language as implied under the Rules shows that due regard has to be given to the four factors, service record, ability character and seniority, in addition to other contributory factors. The minimum benchmark fixed under the Rules are these four factors. More emphasis has to be laid on service record, ability, character and seniority. The merit in regard to the ability which has been taken into consideration by the Full Court goes to indicate that so far the working of the petitioner was concerned that was taken into consideration in the form of minimum benchmark and thereafter he was promoted to the post of Additional District & Sessions Judge. The promotion of the petitioner and his inclusion in the Higher Judicial Service cadre wiped out the earlier entries and the promotion of the petitioner was not on seniority basis but in fact senioritycummerit or the minimum benchmark fixed by the Court was crossed over by the petitioner and he was found fit considering his ability to be promoted to the Higher Judicial Service cadre.
On the other hand, the learned Additional Chief Standing Counsel has denied the allegations made in the writ petition and has submitted that the order of compulsory retirement is justified in the facts and circumstances of the case. The petitioner had not performed well and there was shortfall in his quota and, therefore, he was presumed to be a deadwood and an inefficient officer. The Court had examined the overall service record of the petitioner and had come to the conclusion that he was not fit to be retained in service as he was inefficient and deadwood and was having shortfall in quota. He has also submitted that since the petitioner was not promoted on the basis of merit, therefore, the adverse entries existing prior to the date of promotion of the petitioner to the post of Additional District & Sessions Judge could be taken into consideration and as contemplated under Rule 56(2) of the Uttar Pradesh Fundamental Rules, the overall service record has to be taken into consideration. The entries pertaining to particular years in respect of shortfall are enough to justify his compulsory retirement. The other entries in the character roll of the petitioner were also of inferior category and, therefore, the order of compulsory retirement cannot be faulted in any manner.
In support of his argument, the learned Additional Chief Standing Counsel has placed reliance upon the decisions rendered in the cases of (1) Union of India v. M.E. Reddy and another, (1980) 2 SCC 15, (2) Baikuntha Nath Das and another v. Chief District Medical Officer, Baripada and another, (1992) 2 SCC 299, (3) All India Judges'' Association and others v. Union of India and others, (1993) 4 SCC 288, (4) S. Ramachandra Raju v. State of Orissa, (1994) Supp. 3 SCC 424, (5) State of Orissa and others v. Ram Chandra Das, (1996) 6 SCC 331, (6) I.K. Mishra v. Union of India and others, (1997) 6 SCC 228, (7) M.S. Bindra v. Union of India and others, AIR 1998 SC 3058, (8) Jugal Chandra Saikia v. State of Assam and another, (2003) 4 SCC 59, (9) Jagannath (Prajapati) v. Hon''ble Allahabad High Court represented through Registrar General and another, (2007) 1 UPLBEC 25. He has also relied upon Union of India and others v. Lt. Gen. Rajendra Singh Kadyan and another, (2000) 6 SCC 698 and B.V. Sivaiah and others v. K. Addanki Babu and others (1998) 6 SCC 720, to support his argument that if promotion is based on senioritycummerit then it is not on merit, so the earlier entries given to the petitioner were rightly taken into consideration for the purpose of compulsory retirement.
We have heard Shri Kapil Dev, Sr. Advocate, assisted by Shri R.B.S. Rathaur, learned counsel for the petitioner and Shri Alok Sinha, Additional Chief Standing Counsel, and have given our anxious consideration to the arguments advanced on behalf of both the parties.
The admitted facts which have been indicated in the counter affidavit are that the petitioner was appointed as Munsif, Sultanpur on 5.8.1985 after completing his training. He was promoted to the post of Civil Judge (Senior Division) cadre and posted as Additional Chief Judicial Magistrate at Ghaziabad on 18.10.1994. Thereafter, the petitioner was considered for temporary promotion to the Higher Judicial Service by the HJS Recruitment Committee in its meeting held on 18.4.2001 and the name of the petitioner was recommended for promotion to the U.P. Higher Judicial Service. The report of the Recruitment Committee was accepted by the Full Court in its meeting held on 18.8.2001 and thereafter the petitioner took over on temporary basis in Fast Track Court on 24.10.2001 under Rule 22(3) of the Rules. The petitioner thereafter came to be promoted on regular basis under Rule 22(1) of the Rules vide Government Order dated 27.2.2005. His promotion on regular basis was considered by the HJS Recruitment Committee on 25.11.2004 and the Full Court thereafter considered the case of the petitioner for being promoted on regular basis on 5.2.2005 and his name was recommended and approved for promotion to the Higher Judicial Service under Rule 22(1) of the Rules on regular basis. The petitioner assumed charge and had been working as Additional District Judge but all of a sudden the Committee constituted under the orders of the Acting Chief Justice considered the case of the petitioner along with various other officers and recommended the petitioner for compulsory retirement vide its report dated 29.3.2006. The Full Court approved the retirement of the petitioner in its meeting held on 29.4.2006. Thereafter, on 8.6.2006 the petitioner was retired compulsorily.
The record was summoned by the Court and after perusing the record the Court found that the required quota of work of the petitioner for the years 199495, 199596, 19992000, 200102, 200203 and 200304 was less and was not up to the required mark and, therefore, the Committee took a decision to retire the petitioner compulsorily. In the counter affidavit, it has been admitted in paragraph30 and onwards that the entry with respect to the year 198586 shows that the work of the petitioner was only 16% although the said entry was condoned on the ground that the petitioner was a new entrant and he was rated a fair officer. Then in 198889 certain adverse remarks were awarded to the petitioner by the District Judge against which he moved representations to the Administrative Judge and the Administrative Judge vide order dated 27.9.1989 expunged the adverse remarks awarded by the District Judge. The work of the petitioner was 125% which was found to be above the prescribed standard and he was rated a fair officer and integrity was certified. No remarks were given on the judicial side which is apparent from the entry of the year 198889 but the aforesaid entries were taken into consideration and did not weigh much with the Committee while considering the case of the petitioner.
The entries with respect to the years 199495, 199596, 19992000, 200102, 200203 and 200304 were taken into consideration and weighed much with the Committee while considering the case of the petitioner. It seems that the Committee was swayed much more on account of the shortfall in quota but whether the shortfall in quota which stood condoned by the Court was taken into consideration or not, is not evident from the record and reither it is evident whether such material was placed before the Committee while considering the case of the petitioner.
So far as the entry for the year 199495 is concerned, the entry awarded by the Court to the petitioner shows that the reason of his midsession transfer from Ghaziabad for shortfall in quota was accepted by the Court. The District Judge rated the officer as good, which was accepted and integrity was also certified. The shortfall in quota stood condoned by this Court on account of reason given by the petitioner.
The entry with regard to the year 199596 shows that the shortfall in the petitioner''s work was shown in it. This entry was communicated to the petitioner, against which he made a representation to the Administrative Committee and the Administrative Committee in its meeting held on 1.11.1996 expunged the adverse entry of shortfall in quota saying that the shortfall in disposal being 17.15% only, the officer is rated as a good officer.
The entry with regard to the year 19992000 as stated in paragraph34 of the counter affidavit indicates that the District Judge has accepted the explanation given by the petitioner for shortfall in quota. The Administrative Judge endorsed the view of the District Judge and rated the petitioner a good officer. So this shortfall also condoned by the Court.
The entry awarded with respect to the year 200102 also shows that the District Judge indicated shortfall in quota but the Administrative Judge while considering the explanation of the petitioner found the explanation justified and condoned the shortfall.
It is thereafter that the petitioner was promoted on temporary basis as Additional District & Sessions Judge under Rule 22(3) of the Rules.
In respect of the entry of the year 200203, the Court was of the opinion that the officer has decided good number of old cases hence a little shortfall in out turn shall be ignored and the Court agreed with the opinion of the District Judge. So the above shortfall also stood condoned by the Court. The petitioner made a representation on 9.6.2003 against the remarks recorded by the District Judge for the year 200203 and the Administrative Judge passed an order on the representation of the petitioner to the following effect:
���..In fact, after the remarks of the Administrative Judge, there was nothing adverse against the Officer. For all practical purposes, the remarks of the District Judge on that point, do not survive after the remarks of the Administrative Judge, so the question of considering the representation of the officer for expunging the same, should also not arise.�
The above order indicates that there was no confusion that the doubt, if any, stood removed after the above order on the representation of the petitioner in regard to shortfall in quota.
For the year 200304 while presiding as Additional District & Sessions Judge in Fast Tack Court, the Court condoned the shortfall in disposal as the petitioner had disposed of old cases, integrity was certified and he was rated a good officer.
The petitioner''s performance appraisal for the years 200405 and 200506 while working as Additional District & Sessions Judge at Muzaffarnagar from 1.4.2004 to 19.5.2005 and at Mathura from 20.5.2005 to 31.3.2006 was altogether ignored, where his work was found to be 114.70% and 110.08% respectively for the said years. The learned counsel for the petitioner has emphasized that the petitioner''s percentage of work for the years 200405 and 200506 was not taken into consideration while considering his compulsory retirement though when the petitioner was going to retire, the performance which was in existence prior to the date of order of compulsory retirement should also have been taken into consideration.
From the foregoing discussion, it is evident that the entries which were taken into consideration for compulsorily retiring the petitioner were either expunged or the shortfall of percentage of work was condoned either by the Administrative Judge or by the Administrative Committee but this aspect of the matter was totally ignored by the Committee while considering the case of the petitioner. The opinion to compulsorily retire a government servant has to be based on objective consideration and that too on the basis of material and if the material as required is not available or the decision is based on irrelevant material, then the order of compulsory retirement cannot be sustained.
The law in regard to compulsory retirement has been settled by the Apex Court and the consistent view has been that the order can be challenged if the requisite opinion has not been formed on relevant material or the decision is based on collateral ground and it is an arbitrary decision. In Union of India v. Col. J.N. Sinha and another, 1970 (2) SCC 458, the Apex Court in paragraph9 has held as under:
���..That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before Courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision���
In Brij Mohan Singh Chopra (supra) in paragraph7, it was held as under:
����.It is now well settled that while considering the question of premature retirement it may be desirable to make an overall assessment of the government servant''s record, but while doing that, more value should be attached to the confidential reports pertaining to the years immediately preceding such consideration. It is impossible that a new entrant to a service may have committed mistakes and for that reason he may have earned adverse entries and if those entries of early years of service are taken into consideration for prematurely retiring a government employee then perhaps no employee would be safe even though he may have brilliant record of service in later years����
In R. Rajiah (supra) while laying down the parameters for the High Court to retire a member of subordinate judicial service compulsorily, the Apex Court has laid emphasis that the order of compulsory retirement must be based on material and if there is no material to justify the conclusion it will be an arbitrary power exercised by the High Court. Their Lordships in paragraphs21 and 25 of the said decision have ruled as under:
�21. It is true that the High Court in its administrative jurisdiction has power to compulsorily retire a member of the judicial service in accordance with any rule framed in that regard, but in coming to the conclusion that a member of the subordinate judicial service should be compulsorily retired, such conclusion must be based on materials. If there be no material to justify the conclusion, in that case, it will be an arbitrary exercise of power by the High Court. Indeed, Article 235 of the Constitution does not contemplate the exercise by the High Court of the power of control over subordinate courts arbitrarily, but on the basis of some materials. As there is absence of any material to justify the impugned orders of compulsory retirement, those must be held to be illegal and invalid.
Another infirmity that has been pointed out by the Division Bench is of some substance. The respondent, K. Rajeswaran, was selected a District Munsif by the Public Service Commission on 29.11.1971. His probation was declared by the order of the High Court dated 15.7.1974 and on 1.1.1976 he was confirmed as a District Munsif. The Division Bench has rightly observed that it must be taken that when he was confirmed on 1.1.1976, there was nothing seriously wrong against him. In coming to a decision that the respondent should be compulsorily retired, the third Judge of the Review Committee relied upon events that had happened right from 30.3.1954. It is curious that the past events that happened in 1954 were not considered to be of any significance in appointing the respondent to the post of District Munsif, but for the purpose of compulsory retirement those events were considered to be of importance.�
In Baikuntha Nath Das (supra) in paragraph33 their Lordships have laid down the following proposition (iv) as under:
�The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.�
The petitioner was promoted to the Higher Judicial Service on temporary basis under Rule 22(3) of the Rules in 2001 taking into consideration the entries then existing and in 2005 when he was promoted regularly to the cadre of Higher Judicial Service the shortfall in quota as was existing against him stood condoned by the Court and could not have been made the basis for retiring the petitioner compulsorily as the petitioner was promoted on the criteria of Senioritycummerit.
In S. Ramachandra Raju (supra) the solitary entry which was taken into consideration was held to be bad in law and it was emphasized that the entire service record ought to have been taken into consideration and more particularly the latest entries. Their Lordships in paragraphs 9 and 10 have held as under:
�9����..Therefore, the entire service record more particularly the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a government officer. When an officer reaching the age of compulsory retirement, as was pointed out by this Court, he could neither seek alternative appointment nor meet the family burdens with the pension or other benefits he gets and thereby he would be subjected to great hardship and family would be greatly affected. Therefore, before exercising the power, the competent appropriate authority must weigh pros and cons and balance the public interest as against the individual interest. On total evaluation of the entire record of service if the government or the governmental authority forms the opinion that in the public interest the officer needs to be retired compulsorily, the court may not interfere with the exercise of such bona fide exercise of power but the court has power and duty to exercise the power of judicial review not as a court of appeal but in its exercise of judicial review to consider whether the power has been properly exercised or is arbitrary or vitiated either by mala fide or actuated by extraneous consideration or arbitrary in retiring the government officer compulsorily from service.
Keeping these principles in mind and on considering the facts extracted hereinbefore we find that the exercise of power by the government falls in the category of arbitrary exercise of power of failure to take the total record of service into consideration objectively but has taken only the solitary adverse report for the year 198788 as a foundation to compulsorily retire the appellant from service. The Review Committee as well considered only that report, neither earlier reports nor subsequent reports, were considered. It is seen that admittedly the appellant was promoted as a Reader after the adverse report and the adverse comments were communicated to him and in a mechanical way they rejected the report to expunge the adverse remarks, even without going into the contention of the appellant that the then Principal was actuated with mala fides by submitting wrongly or falsely in confidential reports which appear to have some foundation or suspicion for such a contention consistent record earlier and later periods would establish that the appellant has meritorious record of service as a teacher and that his devotion to the service is good and fair and that he maintains discipline, good relations with the students and imparts teaching to the students fairly with good knowledge as a teacher. Therefore, in that background the exercise of the power is illegal.�
In R.C. Soon (supra) in paragraph16 their Lordships have held as under:
�Another error which was committed was that the Court in its resolution of 30.11.1994 took into consideration the complaint of Vijay Singh even though the same was not supported by an affidavit. The Chief Justice had by his order dated 12.5.1994, decided that no complaint against a judicial officer should be entertained unless it is supported by an affidavit. Though this was an administrative order it was passed by the Chief Justice in exercise of the powers conferred on him by Rule 32(2) of the said Rules. There was no reasons as to why this order should have been ignored and the complaint of Vijay Singh entertained even though it was not supported by an affidavit. The resolution of 30.11.1994 also states that some of the Judges have received fresh complaints against the petitioner making serious charges of corruption. No particulars are indicated as to which complaints were received by which Judge. It is evident from the wording of these minutes that what those complaints were, were not even known to all the members of the Full Court when they passed the resolution on 30.11.1994. We have, therefore, no doubt that when a valid decision had been taken by the then Chief Justice on 31.1.1994 exonerating the petitioner, there was no valid reason in law for the Full Court to revoke that decision.�
In Suryakant Chunilal Shah (supra) the Apex Court laid emphasis on material to retire an officer compulsorily and it was observed that when the character roll entries after the respondent''s promotion to the post of Assistant Food Controller (Class II) were not available, the Review Committee could not have come to the conclusion that the respondent was a man of doubtful integrity nor anyone else could have come to the conclusion that the respondent therein was required to be compulsorily retired. In paragraph28 their Lordships have held as under:
�There being no material before the Review Committee, inasmuch as there were no adverse remarks in the character roll entries, the integrity was not doubted at any time, the character roll entries subsequent to the respondent''s promotion to the post of Asstt. Food Controller (Class II) were not available, it could not come to the conclusion that the respondent was a man of doubtful integrity nor could have anyone else come to the conclusion that the respondent was a fit person to be retired compulsorily from service. The order, in the circumstances of the case, was punitive having been passed for the collateral purpose of his immediate removal, rather than in public interest. The Division Bench, in our opinion, was justified in setting aside the order passed by the Single Judge and directing reinstatement of the respondent.�
In Madan Mohan Choudhary (supra) the Apex Court while dealing with an identical situation in regard to the retirement of a member of the Higher Judicial Service came to the conclusion that the exercise of power by the High Court was based on extraneous considerations and there was no material on the basis of which the decision could be supported. In paragraph32 their Lordships have held as under:
�The character roll entries recorded by various District Judges have already been reproduced by us in the earlier part of the Judgment. The remarks given by the High Court on various occasions have also been set out above. It has also been found that there were no entries in the character roll of the appellant for the years 199192, 199293 and 199394. The entries for these years were recorded at one time simultaneously and the appellant was categorized as a �C� Grade Officer. The expression used by the High Court in the counter affidavit filed in this Court in relation to the entries for the aforesaid three years is that they were recorded �at one go�. And, we may add, the Officer was made to go! The date on which these entries were made is not indicated either in the original record or in the counter 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 6.11.1996 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 learned Judge who entertained and ultimately allowed the petitioner for cancellation of bail granted by the appellant, the fact remains that it was an order passed by the on the judicial side in all bona fides. It may have been a wrong order but it was not a motivated order based on extraneous considerations. It was thus a case where there was no material on the basis of which an opinion could have been reasonably formed that it would be in the public interest to retire the appellant from service prematurely in terms of Rule 74 of the Bihar Service Code.�
In Ishwar Chand Jain (supra), the Apex Court again emphasized that the compulsory retirement cannot be resorted to as a measure of punishment. In paragraph29 their Lordships have ruled as under:
�Keeping in view the aforesaid principles we may examine the background under which the order compulsorily retiring Jain came to be passed. In December 1995 Judges comprising the Full Court were not the same as that in the year 1985 when the probation of Jain was terminated. There were new appointments of Judges and there were Judges, who had come on transfer from other High Courts. They could not be aware of the circumstances leading to termination of the probation of Jain and ACR given to him for the year 198485. In the pr�cis of ACRs for the Full Court ACR given to Jain for the year 198485 was shown as �CBelow average�. The Inspecting Judge for the year 198485 had graded the officer as �B+Good� but the Full Court modified the same to �CBelow average�. This Court in earlier appeal filed by Jain against the termination of his probation held that the modification of the entry by the High Court was without any material and was not sustainable in law. It meant that the Supreme Court restored the grading of Jain in his ACR for the year 198485 as �B+Good�. There is no indication of this in the pr�cis prepared by the Registry which certainly would have misled many of the Judges of the Full Court. There is no ACR recorded for the years 199293, 199394, 199495 and for nine months of 199596 when the Full Court met on 12.12.1995. In its earlier meeting on 22.9.1995 it recorded ACR for the year 199192 grading Jain as �Cintegrity doubtful�. In coming to this conclusion the Full Court relied on the inspection report prepared by the Inspecting Judge on 25.2.1992 where he graded Jain as �Integrity doubtful� and gave his note which we have quoted above. There is no material forthcoming as to why the inspection report of February 1992 came to be considered by the full Court in September 1995 and why there could be no inspection from that year till holding of the Full Court meeting. Inspection note by the Inspecting Judge gives an impression that he inspected the Court of Jain and visited the bar room before he gave his report. Fact, however, remains that the Inspecting Judge inspected the Court of Jain only in March 1992. The Inspecting Judge also noted that there were some complaints which formed the subjectmatter of the disciplinary proceedings against him. This also does not appear to be correct inasmuch as on the date of the inspection report no disciplinary proceedings were pending against him. There were also no particulars of the complaints whether these were in writing or oral and if these related to the judicial work performed by the Officer. At least some of the cases in which Jain was found to have acted improperly could have been mentioned when there were many complaints from the Members of the Bar. The inspection note is certainly flawed and could not have formed the basis for the Full Court to record that integrity of the officer was doubtful and to grade him ''C''. Moreover we were told at the Bar and it was not contradicted that the Inspecting Judge took charge of Jind District only on 21.11.1991 and within three months, i.e. on 25.2.1992 gave his inspection report. This is certainly not satisfactory. ACR for the year 199192 is, therefore, to be kept aside. That being the position if we now refer to the pr�cis of ACRs of Jain there were only four ACRs and these are for the years 198384 (BAverage/Satisfactory), 198485 (B+Good), 1988089 (BSatisfactory) and 198990 (B+Good). On the basis of these ACRs it is difficult to hold that the recommendation of the High Court could be justified under clause (c) of the third principle laid down in Baikuntha Nath Das case.�
It was held that there should not be improper exercise of power by the High Court and also if the entire material has not been placed before the Full Court the order would be vitiated.
In Pritam Singh v. Union of India and others, (2005) 9 SCC 748, the Apex Court held that a general and bona fide mistake cannot form the basis for compulsory retirement when the integrity of the officer stood certified.
In Mahesh Chand Agarwal (supra) a Division Bench of this Court led emphasis in regard to the latest entries being given due weightage. In paragraph21 their Lordships have held as under:
�While considering the case of compulsory retirement it is to be kept in mind that a public servant may have committed irregularities or might have failed in faithful discharge of his duties in the initial stages of his service but may have improved in the given passages of time. A public servant who has improved or is improving, cannot be declared as deedwood or unsuitable and therefore, it is settled that entries of distant past should not be allowed to override the entries of the recent past. Thus though entire service record is to be seen but due weightage has to be given to the entries of the last 10 years as was the criteria. In case the entries or punishment in the service record relates to withholding of integrity or reflect dishonestly or misappropriation of funds or financial irregularities or lack or integrity or alike, it can be considered, even if, the officer has been promoted.�
In D. Ramaswami (supra) their Lordships considered the promotion of the appellant therein a few months prior and the fact that there was no suggestive of ineptitude or inefficiency and in these circumstances the order of compulsory retirement was quashed. The Apex Court in paragraph4 held as under:
�In the face of the promotion of the appellant just a few months earlier and nothing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service. The learned Counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to his promotion. We do not say that the previous history of a Government servant should be completely ignored, once he is promoted. Sometimes, past events may help to assess present conduct. But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past.�
In Jayata Prasad (supra) the Single Judge of this Court held that if the order of compulsory retirement is based on no tangible and concrete material, the order would be vitiated. In paragraph14 the Single Judge has held as under:
�In conclusion, I find that the impugned order dated 30.1.1995, Annexure 1 to the writ petition, compulsorily retiring the petitioner from service is not in the public interest as it is based on no tangible and concrete material. The said order has resulted in punishing the petitioner without any disciplinary enquiry as it has cut short his service period and is, therefore, clearly in flagrant violation of the principles of natural justice and the provisions of Article 311 of the Constitution of India. The said order cannot be sustained.�
In R.K. Panjetha v. Haryana Vidyut Prasaran Nigam Ltd. and another, (2002) 10 Supreme Court Cases 590, the order of compulsory retirement was quashed by the Apex Court in spite of the fact that twice warning was issued to appellant therein, one advice of better supervision was issued, he was awarded two censure entries, and four increments were also stopped. The Court in the said case, finding that the chargesheet was issued and the enquiry was pending against the appellant therein, held as under:
�A bare perusal of the order dated 17.12.1998 retiring the appellant compulsorily would indicate that it is stigamatic in character. Since the order ex facie is stigmatic and is punitive, it cannot be sustained.�
In M.P. Electricity Board v. Shree Baboo, (2002) 9 Supreme Court Cases 704, the Apex Court considered the effect of the remark awarded to the respondent therein for absence from the headquarters on some occasions without prior permission and for spending more on the telephone bill than the monetary limit prescribed. The Apex Court considered that the respondent therein has explained that most of the calls though had been made from the residence were of official in nature as the Superintendent Engineer at different places had been contacted for official work. It was also considered by the Apex Court that the integrity was sound. The Apex Court ruled as under:
�The said order having been assailed, the High Court has come to the conclusion that the materials on the basis of which the aforesaid conclusion was arrived at would not satisfy the test of public interest inasmuch as the only remark was the socalled absence from the headquarters on some occasion without prior permission and spending more on the telephone bill than the monetary limit prescribed for such telephone call. The explanation of the respondent was that most of the calls though had been made from the residence were official in nature as the Superintendent Engineer of different places had been contacted for official work, and therefore it cannot be said to be violation of the Ruels. The very service record and the annual character roll for the year 199192 that was placed before us record his integrity to be sound and yet the Screening Committee came to the conclusion that his integrity is also not beyond doubt. There is absolutely not an iota of material to support the aforesaid conclusion of the Screening Committee and a conclusion not based on any materials is obviously justiciable and could be interfered with by a court of law. This being the position, and in the facts and circumstances of the case, we are satisfied that the High Court rightly interfered with the order of compulsory retirement and we see no infirmity with the said order so as to be interfered with by this Court in exercise of power under Article 136 of the Constitution.�
The learned Additional Chief Standing Counsel has laid much emphasis on the proposition that entire service record has to be taken into consideration and the same procedure has been adopted while considering the case of the petitioner and it insignificant that the petitioner has been promoted to the Higher Judicial Service.
In support of his contention, the learned Additional Chief Standing Counsel has relied upon M.E. Reddy (supra), wherein the officer concerned was promoted to the post of Superintendent of Police and thereafter to the post of D.I.G. The entire service record of the respondent therein was considered by the Apex Court and it was found that the integrity was not above board and, therefore, held that the entire service record would have been considered and he was rightly retired. The aforesaid case is a case decided prior to Baikuntha Nath Das case.
The Baikuntha Nath Das (supra) though relied upon by the learned Additional Chief Standing Counsel could not indicate as to in what manner it helps the State when the petitioner stood promoted to the Higher Judicial Service cadre on the basis of senioritycummerit principle. The question regarding the applicability of M.E. Reddy (supra) came to be considered in the case of Baikuntha Nath Das (supra) and Baidyanath Mahapatra v. State of Orissa, (1989) 4 SCC 664, and clarifying the legal position their Lordships laid down proposition (iv) that if the promotion is based upon merit (selection) and not upon seniority, then the earlier entries lose their sting. The principles laid down in Baikuntha Nath Das are being continuously followed.
The All India Judges'' Association (supra) is in context of increase in retirement age to 60 years and in that context the observations have been made, wherein it has been stated that the indolent, infirm and those of doubtful integrity are not to be retained.
In S. Ramachandra Raju (supra) again the question of taking into consideration the entire service record was considered by their Lordships of the Apex Court and have laid emphasis on the consideration of the entire service record on account of the fact that only an entry with respect to the year 198788 was taken into consideration and on that basis, the appellant therein was sought to be retired. The Apex Court has laid emphasis in that very context to take into consideration the entire service record.
In I.K. Mishra (supra) the Apex Court considered proposition (iii) of the Baikuntha Nath Das (supra) and neither the proposition (iv) was under consideration nor any argument was advanced in this regard. In the said case, it was held as under:
�Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above.
Applying principles Nos.3 and 4 to the present case, it is worthwhile to refer to the entries pertaining to appellant in his annual confidential report. In the annual confidential report for the year 196061 the appellant has been described as an average worker and his further promotion was deferred. In the year 196162 the appellant was again graded as poor. About trustworthiness it was remarked that his work requires supervision as his accuracy is limited. Against column �business habits� it was remarked that the appellant''s method of working is not systematic. During the period 1.4.1964 to 26.12.1964 against the column ''fitness and further advancement of appellant'', it was remarked �question does not arise�. During the period 196566 and 196667 as well the appellant was described as an average worker. By letter dated 8.9.1972 the Senior Deputy Accountant General, Administration observed that the appellant has not been reported good and was required to show improvement in his work before he may be allowed to cross the efficiency bar for the period beginning from 13.6.1971 to 30.11.1971 the Reviewing Officer observed in the report that the appellant is not fit for further advancement and is an average worker.�
In M.S. Bindra (supra) the Apex Court considered the evidence and instance relied upon against the appellant therein and after analyzing the same came to the conclusion that the order of compulsory retirement was bad in law. Their Lordships in paragraphs 11 and 13 have held as under:
�11. Therefore, judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or mala fide or if it is based on no evidence. The observation that principles of natural justice have no place in the context of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion the same can be obviated on the assumption that other materials alone need be looked into.
While viewing this case from the next angle for judicial scrutiny i.e. want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials no reasonable man would reach such a conclusion. While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim �Nemo Firut Repente Turpissimus� (no one becomes dishonest all on a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of Administrative Law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of �doubtful integrity� it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram and officer with the label �doubtful integrity�.�
The case of State of Punjab v. Gurdas Singh, (1998) 4 SCC 92, also has been relied upon in regard to the fact that the entire service record has to be taken into consideration but the question as to whether the promotion was based on merit or senioritycummerit was not in issue. The Court referred to the case of Baikuntha Nath Das (supra) but there being no argument in this regard that the promotion was based on merit, the same was not adverted to. In paragraph11 their Lordships have held as under:
�The facts in the present case are quite similar to that in Union of India v. V.P.Seth. Here also the only ground on which the order prematurely retiring Gurdas Singh was set aside was that two adverse entries after his promotion from the rank of Asstt. SubInspector to SubInspector were not communicated to him and earlier adverse entries could not be taken into account because even when those existed Gurdas Singh had earned his promotion. It is not necessary for us to again reiterate the principles where the Court will interfere in the order of premature retirement of an employee as these have been accurately set down by various pronouncements of this Court and particularly in Baikuntha Nath Das case. Before the decision to retire a government servant prematurely is taken the authorities are required to consider the whole record of service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well.�
In State of U.P. and another v. Lalsa Ram, (2001) 3 SCC 389, the promotion was based on seniority and that is why the entire service record was taken into consideration. In paragraph10 the case of Baikuntha Nath Das (supra) has been taken into consideration but finding in paragraph12 that the respondent therein was promoted on seniority basis it was held that the fourth principle enunciated in Baikuntha Nath Das (supra) was not applicable. It also relied upon I.K.Mishra (supra), in which similar situation arose for consideration. The Apex Court in paragraph12 held as under:
�The respondent herein very strongly adverted to the promotion offered and contended that even assuming there were adverse reports and remarks by reason of the promotion being made available, the adverse remarks lost their sting and as such the same do not and cannot be said to be a factor which must have weighed with the authority concerned directing compulsory retirement. Admittedly, the law being well settled on this score that in the event of there being a promotion by the Departmental Promotion Committee upon assessment of the service career and annual confidential reports the adverse entries lose their sting in the event, however, the promotion is offered only on the ground of seniority without any assessment of the entire career situation, question of adverse entries losing their sting does not and cannot arise. In the contextual facts if it was promotion by way of a selection and not by seniority, no exception could be taken therefor but the facts in the present context depict otherwise since the respondent herein was promoted by seniority only. The fourth principle as enunciated by this Court in Baikuntha Nath Das case thus cannot be of any assistance to the respondent herein. A similar situation arose in the case of I.K. Mishra v. Union of India, wherein this Court upon analysis of the factual aspect had the following to state:
�No doubt the appellant was sent by the respondents to appear in S.A.S. examination in the year 197273 after having been found that the appellant complied with the conditions for appearing in the said examination and, further, the appellant passed the S.A.S. Part II Examination but merely the facts that the appellant was sent to appear in the examination and was declared successful in the said examination are not the end of the matter. In fact passing of the S.A.S. Examination entitles an auditor to be considered for promotion to the higher post by the Departmental Promotion Committee. In the present case after the appellant was declared successful in the S.A.S. Examination, the Departmental Promotion Committee after considering the service record of the appellant did not recommend his case for further promotion. Applying Principle 4 as noted in the case of Baikuntha Nath Das (supra) the appellant having not been promoted to the higher post the adverse remarks in his character roll remained intact. Since the appellant was not promoted to the higher post by the Departmental Promotion Committee it is not correct to contend that the adverse materials in the annual confidential report of the appellant lost their sting and those materials could not form the basis of order compulsorily retiring the appellant from service.�
Jugal Chandra Saikia (supra) is also to the same effect that the entire service record has to be taken into consideration and the order of compulsory retirement is to be based on subjective satisfaction of the competent authority and of course on objective consideration and if it is established that it is without application of mind, compulsory retirement would be perverse. In paragraph 6 it has been held as under:
��..Unless it is shown that the order of compulsory retirement was passed arbitrarily and without application of mind or that such formation of opinion to retire compulsorily was based on no evidence or that the order of compulsory retirement was totally perverse, the court cannot interfere�.�
In Jagannath (Prajapati) (supra) a Division Bench of this Court considered the order of compulsory retirement but in the said case the Court found that there were four departmental inquiries and one vigilance inquiry pending against the petitioner, apart from shortfall in quota, and in these peculiar circumstances the writ petition was dismissed.
As regards the proposition that the entire service record has to be taken into consideration, while relying upon some of the cases of the Apex Court, it is clear that it varies fact to fact and case to case. One difference in fact may make a lot of change in the decision and mechanically the facts of a particular case are not to be applied. The Apex Court in U.P. State Electricity Board v. Pooran Chandra Pandey and others, 2008 (1) ALJ 75, in paragraphs 12, 14 and 15 has held as under:
�12. As observed by this Court in State of Orissa v. Sudhansu Sekhar Misra (AIR 1968 SC 647 vide para 13):
�A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Eart of Halsbury, I.C. said in Quinn v. Leathem, 1901 AC 495:
�Now before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.�
In Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. (2003) 2 SCC 111 (vide para 59), this Corut observed:
�It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.�
As held in Bharat Petroleum Corporation Ltd. & another v. N.R. Vairamani & another, AIR 2004 SC 4778, a decision cannot be relied on without disclosing the factual situation. In the same Judgment this Court also observed:
�Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid''s theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.�
In London Graving Dock Co. Ltd. v. Horton, (1951 AC 737 at p.761), Lord Mac Dermot observed:
�The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.�
In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, �Lord Atkin''s speech �.. is not to be treated as if it was a statute definition; it will require qualification in new circumstances.� Megarry, J. in (1971) 1 WLR 1062 observed: �One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament.� And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
�There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.�
Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
The following words of Lord Denning in the matter of applying precedents have become locus classicus:
�Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
***** ***** *****
�Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches.
My plea is to keep the path of justice clear of obstructions which could impede it.�
The above proposition of law goes to indicate that only in the case, in which the promotion has been made on the basis of seniority, the entire service record can be considered and the argument of the learned Additional Chief Standing Counsel, therefore, cannot be accepted and fails.
The question which falls for our consideration in the present case is as to whether the earlier entries awarded to the petitioner before his inclusion in the Higher judicial Service cadre on regular basis under Rule 20(1) of the Rules will stand wiped out or they shall be read while considering the case of the petitioner for compulsory retirement. The Rule 20(3) of the Rules provides the criteria of promotion based on senioritycummerit. For convenience Rule 20(3) is quoted below:
�The Selection Committee shall, after examining the record of the officers including in the list prepared under subrule (2) of this rule make a preliminary selection of the officers who in its opinion are fit to be appointed on the basis of senioritycummerit. In assessing the merits of a candidate, the Selection Committee have due regard to his service record, ability, character and seniority. The list shall contain the name of officer twice the number of vacancies required to be filled by promotion of the members of the Nyayik Sewa.�
How the criteria of senioritycummerit is to be interpreted in the facts of the present case is to be considered by us. The Apex Court has ruled consistently that the merit has not to be given a go bye but in fact the minimum merit as fixed by the department has to be achieved by an officer before being promoted to the higher post when the criteria of senioritycummerit is followed. The phrase senioritycummerit has drawn the attention of the Apex Court time and again and their Lordships have proceeded to interpret and lay down the meaning and scope of phrase senioritycummerit.
The learned counsel for the petitioner has relied upon various cases for substantiating his argument in regard to principle senioritycummerit.
In Syed Mahmood (supra) their Lordships of the Apex Court came to consider the phrase senioritycummerit and while interpreting it held in paragraph4 as under:
���Where the promotion is based on senioritycummerit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.�
In B.V. Sivaiah (supra) the Apex Court again was posed with a question as to how the principle of senioritycummerit is to be interpreted and in para18 their Lordships held as under:
�We thus arrive at the conclusion that the criterion of �senioritycummerit� in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of senioritycummerit.�
In Lt. Gen. Rajendra Singh Kadyan, (2000) 6 SCC 698, their Lordships again interpreted the criteria of senioritycummerit and laid down in paragraph 12 as under:
�Wherever fitness is stipulated as the basis of selection, it is reqarded as a nonselection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. �Senioritycummerit� postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority����
In Ved Prakash (supra) again the Apex Court in para3 has laid down as to how the expression senioritycummerit has to be interpreted, which reads as under:
�The expression �senioritycummerit� by any stretch of imagination cannot be construed to be equivalent to seniority alone as concluded by the learned Single Judge. Where a promotion is based solely on the basis of seniority, then there is no question of adjudging the merit of the relevant contesting candidate and promotion is bound to be given on the basis of the seniority in the feeder cadre. But, when Rule 9 itself provides that promotion is based on the criterion �senioritycummerit�, it is difficult to comprehend how �merit� will be ignored from consideration, particularly when the selecting authority brought to the notice of the Court that the senior persons were duly considered but were adjudged unsuitable to hold the promotional post because of their performance in the feeder cadre and/or because of some proceedings pending against them.�
The law as propounded by the Apex Court leads us to the conclusion that the minimum benchmark fixed in the form of service record, ability, character and seniority was to be achieved. The word ''ability'' is a word of wide import and cannot be given restrictive meaning.
In the Corpus Juris Secundum, the meaning of ability has been defined as the state or condition of being able, power or capacity to do an act in any relation, or competence in any occupation.
Webster''s Third New International Dictionary defines ability as suitability; aptitude; the quality or state of being able; physical, mental or legal power to perform; natural talent or acquired proficiency especially in a particular work or activity.
The meaning of ability in Law Lexicon is state of being able; power or capacity to do an act or competence in any occupation; capacity, skill, or other qualification for doing an act.
The ability includes overall performance of the petitioner on merit including judicial working and when the case of the petitioner was considered by the Full Court considering his ability on merit, it has to be presumed that the petitioner''s shortfall in quota stood condoned and he achieved the minimum benchmark of the requirement in regard to merit fixed by the Court. Once the element of merit came into play while considering the case of the petitioner and the Court has found him fit to be promoted to the Higher Judicial Service cadre, then any entry awarded to him prior to the said date will stand wiped out in view of the various pronouncements of the Apex Court as aforesaid. The minimum benchmark in regard to ability which includes the working of the petitioner as a judicial officer was also achieved by the petitioner and he was found fit to be included in the cadre of Higher Judicial Service. The integrity of the petitioner has not been doubted at any point of time while judging the merit and, apart from seniority, service record, is also required to be considered and was considered. The service record contains all the entries which are said to be relied upon by the opposite parties in retiring the petitioner. Once the service record, ability, character and seniority were the four factors for judging the merit of the petitioner, it obviously goes to indicate that the service record which contained shortfall was also considered by the Court and at that juncture the shortfall was not considered to be an obstacle or ineligibility in promotion of the petitioner. When the Court considered the shortfall, which was also in the service record, and also the ability of the petitioner, which proved the utility of the petitioner upto the date of his promotion, it cannot in any manner lead to the otherwise conclusion as contemplated under law.
The emphasis laid down by the learned Additional Chief Standing Counsel in regard to the entire service record having been considered while retiring the petitioner and while doing so the Court laid emphasis to the entries of certain years in which there was shortfall in the disposal of the petitioner cannot be given much credence on account of the fact that the law as adumbrated by the Apex Court is that after the promotion the entries of the earlier period lose their sting and cannot be considered as a material to retire a government servant from service.
The material, as discussed above, to retire the petitioner compulsorily was based upon petitioner''s shortfall which stood condoned by the orders of the Court and the Administrative Committee and he was given promotion on regular basis on 12.4.2005.
The law in regard to the entries of the years prior to the date of promotion on the basis of merit came to be considered in Baikuntha Nath Das (supra) and in proposition (iv) their Lordships have laid down that if the promotion is based upon merit (selection) and not upon seniority, then the entries for the period prior to the promotion cannot be taken into consideration for retiring the government servant compulsorily. In proposition (iv) the words ''and not upon seniority'' do indicate that the only field left for considering the entire service record was to the extent the promotion was based only on seniority. The criteria of senioritycummerit was left over which, in our opinion, was that the Apex Court considered seniority as a dominating factor where the entire service record was to be considered but where the merit was to be touched in the form of minimum benchmark, the entries of the period anterior to the promotion also cannot be considered as is clear by the interpretation of the criterion senioritycummerit, wherein the merit plays a vital role for promotion to the higher post.
In the subsequent case, after Baikuntha Nath Das (supra), in Suryakant Chunilal Shah (supra) also the Apex Court ruled to the same effect and held that the character roll entries prior to the promotion of the officer could not have been taken into consideration and, therefore, there was no material to justify the retirement.
In Madan Mohan Choudhary (supra) the promotion was made on officiating basis and the officer concerned was not confirmed on that post. It was also a case relating to a judicial officer promoted to the cadre of Additional District & Sessions Judge. In the background of the relevant facts, it was held that there was no material on the basis of which an opinion could have been reasonably formed to retire the officer prematurely in terms of Rule 74 of the Bihar Service Code and, accordingly, their Lordships held that the entries prior to the promotion could not have been taken into consideration. It was also held that three entries awarded at one go were communicated on 29.11.1996 and on 30.11.1996 the Full Court considered the matter.
In Ishwar Chand Jain (supra) also the Apex Court found that the pr�cis of the ACRs prepared by the Registry and placed before the Full Court did not contain the correct material and on that basis their Lordships held that certainly the Judges of the Full Court were misled. The inspection report of the Inspecting Judge was also not found to be having adequate material.
Respectfully following the law propounded by the Apex Court, we are of the view that the contention of the learned Additional Chief Standing Counsel that the entire service record was to be taken into consideration and on that basis the order of compulsory retirement is valid, is not legally sustainable.
The learned counsel for the petitioner while relying upon the circular dated 8.11.1990 has also drawn the attention of the Court towards the consistent policy of the Court to lay emphasis in regard to ScheduleE, clause (6). The merit of the officer has to be judged by the quality of his work. Clause (6) reads as under:
�The merit of an officer will be judged by the quality of his work. The officers, therefore, in no circumstances will escape from quality for the sake of quantity.�
Further reliance has been placed upon clause (18) of the said circular which reads as under:
�District Judges will check up the statements submitted in compliance of Administrative Judges'', Circular Letter No.8 of 1976 to ensure that Presiding Officers are disposing of a fair number of old cases and are not giving preference to new cases. A specific mention should be made in the Confidential Remarks regarding this. Presiding Officers found habitually not paying due attention to disposal of old cases may not be considered fit for promotion or confirmation.�
The petitioner feeling dutiful for disposal of old cases adverted himself in that direction and disposed of good number of old cases and, therefore, the entry of the petitioner for the year 199495 indicating shortfall in quota was accepted as the petitioner was transferred in midsession whereas the entry for the year 199596 rating him as fair officer was substituted by the Court as good officer. Then, in 19992000 the shortfall was accepted and the entry was expunged by the Administrative Committee and the petitioner was rated as a good officer. In the year 200102 the reasons given by the petitioner were found to be sufficient as the explanation given by the petitioner for low disposal being disposal of old cases was accepted and condoned by the Court. With respect to the year 200203 the Court agreed with the opinion of the District Judge as the petitioner has adverted himself in disposing of old cases and, therefore, the little shortfall was accepted and condoned. With regard to the year 200304 also this Court condoned the shortfall and was convinced with the explanation given by the petitioner that he has disposed of old cases.
It seems that the petitioner has proceeded to dispose of the old cases only with a desire and longing that the circular will not come in the way of the petitioner while being promoted on regular basis and he may qualify for promotion to the post of Additional District & Sessions Judge. It is not that he has disposed or only one or two old cases but the efforts of the petitioner had been to dispose of old cases continuously and it is common practice that when old cases are disposed of, certainly good period of time is consumed as the lawyers are reluctant in disposal of the old cases and they very seldom cooperate and in this exercise the time of the Court is wasted. The judicial officers have no control over such situations and have to depend upon the lawyers conducting the case and once the lawyer is not interested it is very difficult to get the old case decided and, therefore, if the petitioner has disposed of old cases which was incumbent upon him in view of the circular issued by this Court if there was any shortfall, the same was rightly condoned by the Court.
Therefore, on these counts, there was no material for retiring the petitioner compulsorily on the first ground being the adverse entries prior to the promotion of the petitioner to the Higher Judicial Service on 13.4.2005 could not have been taken into consideration and the entries for the year 200405 and 200506 were also not taken into consideration which also show that the petitioner has improved and his quota was complete, and the second ground being that even if the entire service record was to be considered, then also the shortfall in the disposal of the work with respect to the particular years which weighed much with the Committee stood condoned by the Court as well as the Administrative Committee and it seems that this aspect of the matter was not taken into consideration by the Committee. The Committee was swayed with the shortfall in the disposal but the material contained in the record in the form of condonation of shortfall by the Court and Administrative Committee was ignored and was not taken into consideration. It obviously goes to indicate that there was no material available with the Committee to retire the petitioner compulsorily.
We have also discussed above that since there was no material and neither the integrity of the petitioner was doubted at any point of the time and the performance of the petitioner in later years for 200405 and 200506 has improved, the order retiring the petitioner compulsorily is arbitrary and illegal. The Court was of the definite opinion while promoting petitioner to the cadre of Higher Judicial Service that the shortfall in quota stood explained and had it been found otherwise the petitioner would not have been promoted. The Court has never formed adverse opinion regarding the shortfall till the petitioner was promoted. The material which was germane and genuine and clinching as regards the shortfall was never adverted to by the Court and thereby retired the petitioner. The explanation given by the petitioner had been accepted from time to time by this Court and the said material was also not brought to the notice of the full Court as the pr�cis prepared by the Registry only indicated shortfall in the quota and nothing more than that, on account of which the order of compulsory retirement was approved.
On a consideration of the above discussion, we find that the order of compulsory retirement cannot be legally sustained and is liable to be quashed.
The writ petition succeeds and is allowed. A writ in the nature of certiorari is issued quashing the order of compulsory retirement dated 8.6.2006. The petitioner shall be entitled to consequential benefits.
There shall be no order as to costs.
(Petition allowed)