George vs The State of H.P. and Another

V.K. Manrotra, J.—Petitioner Shri George appeared in the competitive examination held for the appointment to the Himachal Pradesh judicial Service in the year 1981. He was declared successful. He was appointed to the service by an order, dated October 19, 1982, and initially posted as Deputy Register (Rules ) in the High, Court. By an order of December 24, 1982 he was posted as Sub judge cum-judicial Magistrate at Sunder agar. He joined at Sunder-nagar on january7, 1983 and continued there till May 16, 1984witen he was transferred and posted as Sub judge-cum-judicial Magistrate at kangra. The services of Petitioner George were discharged by an order, dated October 27, 1984. By this order, which was preceded by a resolution of the full Court dated September 24, 1984 and, a letter dated September 25, 1984, from the High Court to the State Government; the Petitioner was informed that he shall be discharged from the Himachal Pradesh judicial Service and reverted to the post of Assistant public prosecutor substantively held. By him under the Directorate of prosecution, Himachal Pradesh, with effect from the date of receipt of the order by the Petitioner or October 30, 1984, switchover is earlier. The order of discharge has been assailed by the Petitioner in this writ petition under Article 226 of the Constitution.

In the writ Petitioner, the Petitioner has claimed that his work and conduct as a judicial Officer was of an outstanding nature. At no stage during the period of probation the Petitioner was conversed any adverse remarks. It was only in the first week of May 1984 that the president of Bar Association, Sunder agar, made a complaint against the Petitioner on the basis whereof a departmental enquiry was ordered by the High Court and the District & Sessions judge, Mandi, was entrusted with it. The Petitioner says that he was not served with a copy of the complaint nor was he informed about its contents. It was only on May 30, 1984, that he came to know that he was facing some departmental enquiry.

The Petitioner also says that he made a'' request in the month of June, 1984 for personal interview with face Honble Chief Justice to explain the circumstances under which the complaint was made by the President of the Bar Association and enquired into by the Enquiry Officer. The personal interview was, however, never granted to him. The Petitioner has said that the enquiry report appears to have been considered by the. High Court in the month of September, 1984 where after a recommendation was made to the Government of Himachal Pradesh to discharge the Petitioner from the Himachal Pradesh Judicial Service. The action had been taken without affording any opportunity of hearing to the Petitioner.

The Petitioner also says that at no stage during the period of his probation he was informed about any misconduct, negligence or inefficiency on his part. He had obtained distinctive assessment with regard to his work from the Hon''ble Chief Justice. His record of service was absolutely unblemished. Yet, he has been discharged though the Judicial Officers who had been appointed with him and confirmed in the service at the end of the period of probation through order dated December 1, 1984 did not have a better record than the Petitioner. He further says that the period of probation of tired officers appointed with him had been extended for three years because they had hot qualified at the departmental examination within the period of probation. The Petitioner had qualified at it and, yet, he was discharged from service.

The Petitioner goes on to say that he received a letter dated September 10,1984, from the High Court on September 15, 1984 with regard to his Annual Confidential Report for the year 1983-84. In paragraphs If and 12 the following entries of an adverse nature were conveyed to him:

"Para

Remarks

Defects, if any.

He was in the habit of entering into direct correspondence with.the Hon''ble High Court, in violation of the instructions.

(Adervse)

Net result

Average.

Enquiry pending regarding his integrity assessed as average."

(Adverse)"

The Petitioner sent a representation through his letter dated September 28, 1984 through the District & Sessions Judge, hangar at Dharamashala. Before it realized Shimla, the recommendation to discharge him from services, was made by the High Court to the State Government on September 25, 1984.

In regard to this entry and the representation it has been stated, in paragraph 17 of the reply filed on behalf of the High Court that:

the representation was duly considered. The representation in respect of the remarks did not make against the letter referred to in the representation was nor addressed by the Petitioner to the High Court, copies of which are Annexure R-2/D, R-2/E and R-2/F. However, the adverse remarks against column 12 were ordered to be deleted, and in their place and stead the remarks "average" was ordered to be substituted since it was not treated as an adverse remark and was found even otherwise justified.

It is not in dispute that the original A.C.R. of Petitioner George contains an entry only for one year ending on March 3 1984. Alan no entry was recorded for the period beginning April 1, 1984.

The stand of the High Court about the of the Petitioner basically, is that while taking a decision that Petitioner George had not successfully completed his period compression only, this service record of Petitioner George was Considered and the High Court was not infused by the fact of the Bar Association, Sunder agar, or the fact finding enquiry in connecting therewith. It was also been assured that the formal enquiry was ever directed by the High Court or made into this complaint. The statement contained in paragraph 12 of the reply filed on behalf of the High Court relating to the recommendation for the discharge of the Petitioner from service, is that:

the Ful Court in its meeting held on September 24, 1984, after considering the service record and on the assessment of the work and conduct of the Petitioner had formed the opinion that he had not been able to satisfactorily complete his probationary period. The Full Court had consequently resolve ed that the Petitioner was required to be discharged from service with immediate effect The recommend edition of the Full Court was conveyed to the Secretary (Home) to the State" Government under a letter September 25,1984...

Also, that:

it is submitted that the case of the confirmation of the Petitioner was taken up for consideration along with . those of 11 other officers of the Judicial Service, who were to complete the period of probation at or about the time the Petitioner was to complete the same. The decision qua each of such officers was taken up for consideration individually on the basis of their service record bearing upon their work and conduct during the probationary period. Since it was found that the petitoner had not satisfactorily completed his probationary period it was resolved to recommend that the Petitioner should be discharged from service with immediate effect.

In the same paragraph it has also been said that:

the order of discharge of the Petitioner is implicit. It casts no stigma on the Petitioner.

Later, in paragraph 19 (a) of the reply it has been stated that:

The answering Respondent had taken into consideration the entire service record of the Petitioner and had Assessed his work and conduct before making the " Necessary recommendation to Respondent No. 1...

And, in paragraph 19 (e) that:

As submitted in reply to sub para (a), the entire service record of the Petitioner Was considered and his work and conduct during the relevant period was assessed before making the necessary recommendations for the discharge of the Petitioner from the Judicial Service...

And, in paragraph IV(f) that:

it is denied that the report of the enquiry was made the foundation for making the recommendation to Respondent No. 1. The enquiry was not. Conducted with a view to punish the Petitioner. It was only a preliminary fact hiding enquiry. The entire service record of the Petitioner war''s-considered and his work and conduct during the relevant period was assessed....

The original file pertaining to the consideration of the case of the Petitioner and the decision taken by the Full Court was made available for the perusal of the Court. The Agenda and the resolutions of the Full Court Meetings dated June 28, 1984, July 31, 1984 and, in particular, of the meeting dated September 24, 1984, fully justify the statement contained in the aforesaid paragraphs of the reply filed on behalf, of the High Court.

In essence, therefore, the basis for the decision of the Full Court recommending the discharge of Petitioner George was the remark that ''he was in the habit of entering into direct. Correspondence with the Hon''ble High Court, in violation of the instructions'' and that he was ''an average officer). This is the stand which the High Court has taken and which, on facts, it is difficult to doubt.

The question that needs consideration is whether the opinion of the High Court, inbounded upon the aforesaid remarks, "and its view that the ''Petitioner had not satisfactorily completed his, probationary period'' can be held to be legally .sustainable and the order of discharge of the Petitioner from service, based upon it, upheld.

The decision recorded, by the High Court was administrative in nature. It is open to judicial review. ''Irrationality'' of the decision is, one of the grounds on which it can be set-aside. To borrow the words of Lord Diplockin Council of Civil Service Unions and Ors. v. Minister for the Civil Service 1984 3 AER 935 (at pages-950/951):

...Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review.- The first ground I would -call ''illegality'', the second ''irrationality'' . and the third ''procedural impropriety....

By ''irrationality'' I mean what can by now be succinctly referred to as ''Waynesburg unreasonableness....It applies to a decision which is so outrageous in its defiance of logic or of accepted applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system.

This is a decision which was noticed with approval by the Supreme Court in Ranjit Thakur Vs. Union of India (UOI) and Others, After referring to it, and to the decision of the Supreme Court in Bhagat Ram Vs. State of Himachal Pradesh and Others, the learned judges observed that:

the point to note and emphasize is that all powers have legal limits.

If an administrative action is arbitrary in the sense of being unreasonable'', it can be struck down in the course of judicial review. Article 14 of the Constitution strikes at arbitrates and ensures fairness. In the case of a public servant the ambit and reach of Article 14 is not limited to cases where the public servant has a right to a post. The protection against arbitrary action is also available to a public servant in an officisting position. (See E.P. Royappa Vs. State of Tamil Nadu and Another, Similar protection is available to an officer, like the Petitioner, who is a probationer.

what then is unreasonableness Lord Greate M.R., in Associated provincial picture Hearses, Ltd. V. Wednes bury Corporation 1947 2 AER 680, observed at page (682/683) that:

...Lawyers familiar with the phraseology commonly used in relation to the exercise of statutory a rather comprehensive sense. It is frequently used as a general description of the things that must not be done..... Similarly, you may have something so something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington, L.J., I think it was, gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In Anr. sense it is taking in to consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith. In fact, all these things largely fall under one heard.

In Edwards Inspector of Taxes v. Bairstow and Anr. 1955 3 AER 48 Lond Somervell, while dealing question we can advantage in the nature of trade or not, said (at page 53) that whether:

...it be regarded as a pure finding of fact, or as the determination of a question of law, or of mixed law and fact. it may be set aside on grounds which have been stated in various ways but are, I think, failry summarized by saying that the court should take that course if it appears that the commissioners have acted without any evidence, or on a view of the facts which could not reasonably be entertained....

(Emphasis supplied).

In the words of Lord Brightman in Chief Constable of the North Wales Police v. Evans 1982 3 AER 141 (at page 155)

...When the sole issue raised on an application for judicial review is whether the rules of natural justice have been observed, these propositions are an administrative decision is attacked on the ground that it is vibrated by self-misdirection, by taking account of relevant factors, or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question, could reasonably have made such a decision: See the well known judgment of Lord Greene M.R. in Associated Provincial picture Houses Ltd. V. Wednestary Corp....

(Emphasis supplied).

18 Speaking about the test of irrationality'' Taylor, J. said in R. v. Secretary of State for the Home Department, Ex parte Ruddock and Ors. 1987 2 AER 518 that:

.....What the Court must do is to look at all the evidence of fact and opinion and decide whether it shows that no reasonable Secretary of State could have concluded the criteria applied. Lord Dip lock put the test starkly in the GCHQ case 1983 3 AER 935 at 951.....

"Waynesburg unreasonableness".........app lies to a decision which is so outrage JUS in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question'' to be decided could have arrived at it."

19 In Supreme Court Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, the principle stated by Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 1947 2 AER 680 was recited with approval and it was said (in paragraph 106) that:

Ah act is ultra vires........... because the authority....has acted with gross un reasonableness....

Later, (in paragraph 107) the Supreme Court said that:

The true position thus appears to be that, just as in the case of an administrative action, so also in the case of subordinate legislation (whether made directly under the Constitution or a Statute), its validity is open to question if it is ultra vires the Constitution or the governing Act or repugnant to the general principles of the laws of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made-if.

(Emphasis supplied)

The Supreme Court reiterated (in, paragraph 103) what it had said earlier in Saraswati Industrial Syndicate Ltd. and Others Vs. Union of India (UOI), by saying that:

Reasonableness, for purposes of judging whether there was an ''excess of power'' or an ''arbitrary'' exercise of it, is really the demonstration of a reasonable nexus between the matters which are taken into account in exercising a power and the purposes of. Exercise of that power."

These decisions unmistakably lay down that where an1 administrative decision is. found to be such which could not taken by any reasonable body of .persons on the facts before '' them, it would suffer from the vice of ''irrationality'' and would be liable to be set-aside on that account in the course of judicial review. It would amount to a self-misdirection and be vitiated on that count.

In the present case the opinion under challenge, which the Full Court formed about the work and conduct of Petitioner George, was on the basis of the remarks that the Petitioner was in the habit of entering into direct correspondence with the Hon''ble High Court, in violation of the instructions and that he was an average officer. It is difficult to sustain the submission, so emphatically made on behalf of the High Court, that these * remarks could justifiably lead to a reasonable conclusion that Petitioner George hail not satisfactorily completed his probationary period and was liable to be discharged from service. The opinion of the Full Court, to that effect, undoubtedly suffers from ''irrationality''s understood in-law. It is clearly vitiated by self-misdirection.

When analyzed reasonably, the remarks on the basis whereof the Full Court recorded its opinion amount only to saying that though an average officer, Petitioner George used to address communications directly to the High Court in breach of instructions to the contrary. In other words, his work was of an average level; yet, his conduct in addressing com1 medications directly to the High Court was such which called for his discharge form service. An opinion of this nature can hardly be upheld as reasonable.

It has been noticed earlier that in paragraph 17 of its return the High Court said that:

.......even if the letter referred to in the representation was not taken into consideration, there were other letters add jessed by the Petitioner to the High Court, copies of which are annexure R-2/D, R-2/E and R-2/F........

A look at4hese letters shows that the first two of them had been sent by the Petitioner on January 19, 1983, to the Deputy Registrar (Admh.) with a request for "crediting his earned leave account with the period of his joining time and asking for issuance of the last pay certificate to enable him to draw his pay issuance of the last pay certificate to enable him to draw his pay for the month of January, 1983. The third letter was addressed to the Registrar saying that he had cleared the Departmental Examination and that his case for reification of pay may be taken up with the Government.

Instructions in breach whereof the Petitioner is said to have sent the letters were issued on March 1, 1984, and said that all representations/appeals etc., addressed to the Chief justice should be submitted through proper channel. They were issued when it was noticed that some officials of the Subordinate Courts had submitted their representations appeals to the High Court directly without following the proper course. It is clear that apart from being innocuous letter, which were written prior to the issuance of the instructions of the High Court, the communications attributed to Petitioner George did not fall in the category of the communications which had to be sent through proper channel under the instructions.

On fact, thus, it is clear that in forming the opinion that it did, the Full Court was impressed by a circumstance which could not legitimately be taken into account by it.

The State Government, admittedly, acted on the recommendations of the High Court and the consequential recommendation to discharge Petitioner George from service on the ground that he had failed to complete his period of probation satisfactorily was clearly arbitrary. It cannot be uphold consequentially also, the notice discharging Petitioner George from service.

The recommendation of the High Court dated September 25, 1984, founded upon the resolution of the Full Court dated September 24, 1984, discharging the Petitioner from service are quashed. The Petitioner will be entitled to all consequential benefits. He will also be entitled to his costs from the second Respondent.

The writ petition shall stand allowed in these terms.