Kailash Chandra Padhi vs State of Orissa and Another

B.N. Mahapatra, J.—In the present Writ Petition challenge has been made to the Order Dated 19.08.1995 (Annexure-7) passed by Opp. Party No. 1-State of Orissa through Secretary to Government, Department of Law, Sachivalaya Bhubaneswar, Dist: Khurda by which Opp. Party No. 1 prematurely retired the Petitioner w.e.f. 19.08.1995 in exercise of powers conferred under clause (a) of Rule 71 of the Orissa Service Code on the ground that the said order is arbitrary, malafide & vitiated for non-application of mind. Petitioner''s case in a nutshell is that he was recruited through the Orissa Public Service Commission as a Temporary Munsif in O.J.S. (Class-II) Cadre under the Emergency Recruitment Rules, 1979. After Opp. Party No. 1 appointed him as a Munsif on 09.01.1981, this Court posted him as an Additional Munsif in the Judgeship of Ganjam-Boudh on 14.01.1981. Subsequently, he was appointed in the rank of Munsif in the cadre of O.J.S. (Class-II) w.e.f. 27.01.1983. During his incumbency as a Munsif at various stations, there were adverse entries in his Confidential Character Roll (CCR) for the years 1984, 1985, 1986, 1987 & 1989. According to the Petitioner, all these CCR entries are merely to the extent that the Petitioner was peevish & that he should improve the capacity of supervision over his staff. On 30.01.1989, he was promoted to O.J.S. Class-I (Junior Branch). The High Court on careful consideration of his service performances as a Judicial Officer permitted him to cross the Efficiency Bar w.e.f. 01.01.1990 & his pay scale was accordingly raised. After getting promotion to O.J.S. Class-I (Jr. Branch) & during his incumbency in the said cadre, a proceeding was initiated against him, & after holding an inquiry this Court accepted the report of the Inquiring Officer & dropped the proceeding. The Petitioner was subsequently, promoted to the cadre of O.J.S. Class-I by order of the High Court on 14.11.1994. The High Court on careful consideration of all the materials on record, restored the Petitioner''s seniority by Order Dated 14.11.1994. On 24.03.1995, the Petitioner was posted as a Civil Judge (Senior Division), at Champua. While the Petitioner was continuing as such suddenly by Order Dated 19.08.1995, he was prematurely retired with effect from the said date. Hence, the present Writ Petition.

Mr. G.N. Mishra, Learned Counsel appearing on behalf of the Petitioner submitted that the impugned Order Dated 19.08.1995 passed under Annexure-7 is arbitrary, mala fide & vitiated for non-application of mind. It was submitted that the Petitioner hails from the district of Koraput, which is a backward district & having come from such a background, he Could not satisfy the requirements of his higher reporting officers who hail from the advanced districts of the State. The Petitioner''s upbringing from a backward district in an environment of backward people of the State should not & could not lawfully stand on the way insofar as discharge of his official duties as a Judicial Officer. The adverse CCRs during the years 1984 to 1989 are of minor nature & are not relevant for the purpose of estimating the efficiency of the Petitioner as a Judicial Officer. The promotion of the Petitioner to O.J.S''. Class-I (Junior Branch) & the order of this Court permitting the Petitioner to Cross Efficiency Bar have rendered the minor, irrelevant & negligible adverse entries in his CCRs ineffective. The only blot in Petitioner''s career was an ignorant order passed by him in relation to the restoration application & the displeasure of this Court expressed on such conduct of the Petitioner. During the Petitioner''s incumbency in the cadre of O.J.S. Class-I, hardly for four months, there was nothing on record even mildly suggesting of inaptitude or inefficiency or any entry in the Service Book to his discredit or hinting even remotely that he had outlived his utility as a Judicial Officer. The impugned order is not bona fide & is presumed to have been passed on collateral grounds. The impugned order even does not whisper ex facie that the order was passed in public interest & therefore, it is liable to be quashed. The order also does not reveal any reason or ground in support of the purported exercise of power conferred on the Opp. Parties under Rule 71 (a) of the Orissa Service Code. The impugned order affects the livelihood of the Petitioner. There has been no periodic review of work of the Petitioner. It was submitted that the very basis/requirement of formation of opinion about public interest is lacking & therefore, the impugned order is liable to be quashed. Law is well settled that all such entries made in the CCRs prior to the order of promotion & the order permitting the Petitioner to cross Efficiency Bar are not available to be considered for the purpose of giving premature retirement. The impugned order is otherwise bad in law as the same is not bona fide, based on collateral grounds, extraneous consideration & there is no material on record. In support of his contention, he relied upon the Judgments of the Hon''ble Supreme Court in the cases of Brij Mohan Singh Chopra Vs. State of Punjab, & State of Gujarat Vs. Umedbhai M. Patel, .

Per contra, Learned Government Advocate placing reliance upon the Judgment of the Hon''ble Supreme Court in the case of Pyare Mohan Lal Vs. State of Jharkhand and Others, submitted that single adverse entry touching on integrity is enough to impose compulsory retirement. The authorities concerned are justified to consider the entire service record of the Petitioner irrespective of the fact that the officer had been promoted earlier in spite of adverse entries in CCRs. The High Court had objectively decided to recommend his compulsory retirement & the State Authorities have acted accordingly. The adverse entries in CCRs are relevant even after promotion. The washed off theory has no application in context of compulsory retirement. The adverse entries in CCRs. always remain part of record for overall consideration even when the employee has been subsequently promoted.

On the rival contentions of the parties, the question that falls for consideration by this Court is as to whether in the facts & circumstances of the case the impugned Order Dated 19.08.1995 (Annexure-7) passed by Opp. Party No. 1 retiring the Petitioner compulsorily is sustainable in law.

Admittedly in the present case, there are adverse remarks on the CCRs of the Petitioner during the years 1985, 1987 & 1989. Now it is necessary to know what is the nature & gravity of the adverse remarks. According to the Petitioner, the CCR entries made in different years are merely to the extent that the Petitioner was a peevish & that he should improve his capability of supervision over the staff. Verification of record with regard to some of the remarks made in CCRs reveals as follows: Years/Period : Is he industrious & has he coped effectually with heavy work: Knowledge of law & judicial capacity : Remarks about his promptness in disposal of cases: Remarks about reputation of integrity & impartiality

1981 : Industrious & tried to cope effectually with heavy work: Average : Average : Good

1.1.1982 to 3.7.1982 : Yes : Should read more & improve the quality of his Judgment : Disposal good : Good

6.7.1982 to 31.12.1982 : He is industrious & capable of effectually dealing with heavy work : Good : Prompt in disposal of cases : Good

1.1.1983 to 31.12.1983 : Industrious. Coped with heavy work moderately : Average : Prompt in disposal of cases : Good

1.1.1984 to 27.6.1984 : Industrious & coped with heavy work effectually : Good : Prompt in disposal of cases : Good

9.7.1984 to 31.12.1984 : Yes : Average : Average : Nothing heard against integrity & impartiality

1.1.1985 to 31.12.1985 : Not industrious : Average : Average : Nothing adverse

1.1.1986 to 30.4.1986 : Yes : Knowledge in law to improve : He is prompt in disposal of cases : Nothing is heard against his reputation & integrity

25.6.1986 to 10.11.1986 : He is industrious : Good : Takes interest in disposal of cases : Nothing is heard

1.01.1987 to 5.05.1987 :Yes: Good: Good: Nothing heard adverse

1.6.1987 to 23.11.1987 : Not very much : Good : Not so prompt : Unquestionable

1988 up to 20.9.1988 : Yes : Average : Prompt in disposal of cases : Average

Oct 1988 to Dec, 1998 : He is still to improve. He cannot cope effectually with heavy work : He wants little improvement : Slow : Nothing is heard about him

26.9.1988 : May cope with heavy work : Fair but should improve : Fairly prompt : Good

1989-90 : Should strike more : He should improve knowledge in law : Nothing heard adverse

1990 : He is not industrious. He avoids heavy works : Knowledge of law & judicial capacity not up to the mark : He is not so prompt in disposal of cases : Nothing is heard against him

15.4.1991 to 13.2.1992 : Yes : Good : Good : Good

30.9.1991 to 10.2.1992 : Yes : Good : Good : Good

14.2.1992 to 24.07.1992 : Yes : Good : Prompt in disposal of cases : His integrity & impartiality is doubtful

1.08.1992 to 31.12.1992 : Copes with the load : Needs improvement : Prompt : Nothing heard against

1.01.1993 to 16.10.1993 : Copes with the work load : Needs improvement : Prompt : Nothing heard against

1.01.1994 to 10.07.1994 : Average : Needs improvement : Average : Not free from doubt

8.07.1994 to 31.12.1994 : Yes : Good : Good : Good

1.01.1995 to 03.04.1005 : Yes : Good : Good : Good

In the present, perusal of the entries made in the CCRs of the Petitioner reveals that he has been rated as an average officer. In most of the years, more particularly in 1982, 1989 &, 1990, he received adverse comments both on the question of knowledge in law & judicial capacity to the effect that the same was not up to the mark. For the period from 14.02.1992 to 24.07.1992 while he was serving as Additional Munsif, Baliguda, he received adverse remarks with regard to his integrity and impartiality to the effect that the same was doubtful & the general reputation was not good. For the period 01.01.1994 to 10.07.1994 he also received adverse remarks with regard to his integrity & impartiality to the effect that the same was not free from doubt. Needless to say that for effective administration of justice, honest, impartial & law knowing Judicial Officers are required. However, an officer having knowledge in law but without integrity is a great danger to the smooth functioning of the Judiciary. Withholding the integrity of a Government employee is a serious matter. As fire & water don''t agree so also the judiciary & dishonest cannot join their hands together.

The Hon''ble Supreme Court in the case of Pyare Mohan Lal (supra) has held as under:-

The law requires the authority to consider the "entire service record" of the employee while assessing whether he can be given, compulsory retirement-irrespective of the fact that the adverse entries had not been communicated to him & the officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement. The case of a judicial officer is required to be examined, treating him to be different from other wings of the society, as he is serving the State in a different capacity. The case of a judicial officer is considered by a committee of Judges of the High Court duly constituted by the Hon''ble Chief Justice & then the report of the Committee is placed before the Full Court. A decision is taken by the Full Court after due deliberation on the matter. Therefore, there is hardly any chance to make the allegations of non-application of mind or mala fides.

In the case of State of U.P. v. Vijay Kumar Jain, (2002) 3 SCC 641, the Hon''ble Supreme Court held that the vigour or sting of an entry does not get wiped out, particularly, while considering the case of employee for giving him compulsory retirement, as it requires the examination of the entire service record, including character rolls & confidential reports.

The Hon''ble Supreme Court in the case of State of Orissa and others Vs. Ram Chandra Das, has held as under:

Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expendiency or necessity to continue the government servant in service after he attained the required length of service or qualified period of service for pension.

The Hon''ble Supreme Court in the case of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, held as under:

The following principles emerge from the above discussion:

(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the government.

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an Appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.

(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of & performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable & 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) & not upon seniority.

(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.

In view of the above settled legal propositions, various contentions taken by the Petitioner merit no consideration.

The Judgments of the Hon''ble Supreme Court in the cases of Brij Mohan Singh Chopra (supra), wherein no adverse entries awarded within the last five years of service of the Petitioner & in Umedbhai M. Patel (supra) where compulsory retirement was given to the Petitioner on extraneous consideration are of no help to the Petitioner as facts of these two cases are different from the facts of the case at hand.

In view of the above, we don''t find any cogent reason to interfere with the impugned Order Dated 19.08.1995 (Annexure-7). In the result, the Writ Petition is dismissed. No order as to costs.

V. Gopala Gowda, C.J.

I agree.