Tarendra Kumar Jha vs The High Court of C.G. and Others

Satish K. Agnihotri, J.—W.P. (S) Nos. 1989, 2028 & 2025 of 2009 and 3948 of 2010, involve common facts and common question of law and, as such, require consideration and disposal by the common order. The petitioner, a Member of Higher Judicial Service (for short "the HJS"), has preferred these four petitions seeking following reliefs/directions:

(a) WP (S) No. 1989 of 2009:

(i) To grant Super Time Scale (for short "the STS") w.e.f. June, 2002, which was subsequently amended and replaced by March 30, 2005.

(ii) To quash the Annual Confidential Report (for short "the ACR"), for the year 2007-08 i.e. from April 1, 2007 to January 31, 2008, written by the learned Judge (retired), who was earlier Portfolio Judge (for short "PJ"), after demitting the office.

(iii) To quash the resolution passed by the Full Court in its meeting dated March 25, 2009, whereunder, the petitioner was held as ''unfit'' for grant of STS.

(iv) Grading of ''D'' in the service record for the year ending March 31, 2007 be quashed and the said grade be upgraded.

(v) Action be taken against the officers/authority who were party to such illegal actions.

(b) WP (S) No. 2028 of 2009:

(i) To expunge the adverse remarks made in ACR for the period from April 1, 2005 to March 31, 2006.

(ii) To take action against the respondent No. 2 for writing mendacious remarks against the petitioner and to compensate him suitably.

(c) WP (S) No. 2025 of 2009:

(i) To expunge the adverse remarks made in the ACR of the petitioner for the period from April 1, 2004 to October 31, 2008 (sic October 31, 2004).

(ii) Grade "D" awarded to the petitioner, may be upgraded.

(d) WP (S) No. 3948 of 2010:

(i) To grant STS w.e.f. March 30, 2005 and to quash the memo dated July 9, 2010 by which the petitioner was communicated that his representation for grant of STS was rejected.

The indisputable facts, which are in narrow compass, as projected by the petitioner, are that, the petitioner joined the judicial service as Civil Judge Class-II in the year 1981 in the, then, State of Madhya Pradesh. According to the petitioner, in the merit list, he was placed at serial No. 10 out of 87 selected candidates. The petitioner was promoted to the HJS in the year 1993. Thereafter, he was granted Selection Grade Scale (for short "SGS") w.e.f. June 7, 1999 by the, then, High Court of Madhya Pradesh. On allocation of services between the State of Madhya Pradesh and State of Chhattisgarh, the petitioner was allocated to the State of Chhattisgarh and in the seniority list, he was at the top of the Judicial Officers of 1981 batch herein. After denial of STS, the petitioner had come down below the Judicial Officers of 1985 batch.

By communication dated December 17, 2008 (Annexure P-1), the petitioner was informed that for the period from April 1, 2007 to January 31, 2008, he was graded ''Average'' i.e. grade ''D'' and also ''interpersonal relations and team work was not good. He has always been a controversial officer.

The petitioner submitted his representations to the Registrar General (for short "the RG") on January, 2, 2009 (Annexure P-3), January 15, 2009 (Annexure P-4) and February 25, 2009 (Annexure P-5) seeking expunging of remarks and also upgrading of grade ''D''.

In the meantime, the Full Court held its meeting on March 25, 2009 (Annexure PR-15) {Page 91-92 of W.P.(S) No. 1989 of 2009} and as many as 8 Officers including the petitioner were not found fit for grant of STS and his juniors, who have been arrayed as respondents herein, were found fit for grant of STS w.e.f. the date of vacancy of STS arose, as a consequence, the date of first person granted STS was October 11, 2005.

The grounds of challenge are that the, then, PJ demitted the office on July 24, 2008, however, the remarks were made for the period from April 1, 2007 to January 31, 2008 after demitting the office. The representation of the petitioner was rejected on April 8, 2009 (Annexure P-9), which was received by the petitioner on April 17, 2009, after the Full Court decided not to grant STS to the petitioner in its meeting held on March 25, 2009.

The petitioner, being in the Family Court, had settled the disputes by conciliation, which was not properly and objectively appreciated by the, then, PJ. The representations were rejected without examining the facts properly. The petitioner has obtained information under the provisions of the Right to Information Act, 2005 (for short "the RTI Act") and he was informed that the, then, PJ had recorded the adverse remarks on September 3, 2008, i.e. after his retirement July 24, 2008.

It is also contended by the petitioner that recording of the ACR is contrary to the recommendation made by the Shetty Pay Commission. Since there is no provision in the service rules, the guidance for recording the ACRs of the Judicial Officers may be taken from the provisions of the All India Services (Confidential Rolls) Rules, 1970 (for short "the All India Rules"). As per the All India Rules, the reporting authority, reviewing authority and the accepting authority shall not be competent to write the ACR after demitting the office. Thus, in case of the petitioner, recording of adverse remarks after demitting the office by the PJ deserves to be quashed. The grading awarded by the, then, PJ (retired) is arbitrary & mala fide. The same may be expunged from the service records of the petitioner and the High Court may be directed to reconsider the case of the petitioner for grant of STS along with other respondents as on the date they were considered, after removal of adverse remarks, entered by the reporting authority, who had made a remark after demitting the office.

The petitioner next contended that even in the past, several judicial officers were granted STS with effect from the back date. In case of Shri N.S. Rajput, who was retired on August 4, 2002, was granted STS by order dated November 28, 2005 w.e.f. June 2, 2001. Ms. Nirmal Singh and Shri M.K. Tiwari (respondents No. 23 & 24 herein) were also granted SGS w.e.f. October 11, 2002 and STS w.e.f. October 11, 2005, respectively without assessing the comparative merit of other selection grade officers including the petitioner. The petitioner placed reliance upon the principle of law propounded by the Supreme Court in Dev Dutt Vs. Union of India (UOI) and Others, .

On the other hand, Shri Sanjay K. Agrawal, learned Advocate General appearing with Shri Sushil Kumar Duri, learned Advocate for the High Court of Chhattisgarh, would submit that the Full Court in its meeting held on March 25, 2009 had considered the service record and overall performance of the petitioner and other eligible Judicial Officers for selection and appointment on the post of District Judge (STS) and after due consideration, the petitioner was not found fit for grant of STS. The representations made by the petitioner against the non-grant of STS were duly considered and the same were rejected and communicated to the petitioner by memo dated July 9, 2010 (Annexure R1/C).

Shri Agrawal would further submit that the petitioner has no legal right to claim selection and appointment when his case has been considered and he was not found fit for selection and appointment on the post of District Judge (STS). The claim of the petitioner with retrospective effect cannot be considered, as he was not born in the cadre at that time. Representations of the petitioner regarding remarks for the period from April 1, 2007 to January 31, 2008 were duly considered. The said representations were rejected and the same was communicated to the petitioner by DO letter dated April 8, 2009 (Annexure P-9).

Shri Agrawal would also submit that the judicial review of the ACR is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself. Thus, judicial review should be avoided by going into the correctness of the ACR or the assessment made by the reporting officer and approval thereof accorded by the full Court of the High Court. The ground of challenge that there was absence of reasons in rejecting the representation cannot be subject matter of challenge, as the same by itself cannot be held as infirmity.

Shri Agrawal would next submit that the challenge of the petitioner in respect of the respondents No. 8, 10, 11, 15, 17, 18 and 22 is not maintainable for want of locus standi.

Shri Agrawal would submit that under Rule 12(4) of the Chhattisgarh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 2006 (for short "the HJS Rules"), All India Rules, in respect of recording of remarks in the ACR of the Members of HJS would be applicable. The provisions, ibid, are not inconsistent with and also there is no provision dealing with the procedure for recording of remarks in the ACR in the HJS Rules. It is urged that Rule 5 (5) of the All India Rules provides for writing of remarks in the ACR not later than one month of the date of such retirement of the competent authority and, as such, the PJ even after retirement, was competent to write the remarks in the ACR of the Judicial Officers. Instead of one month, the remark was written on 39th day. The period is not material in view of the competence of the PJ, after demitting his office. The accepting authority/competent authority permitted the PJ to write the remarks in the ACR of Judicial Officer after the PJ demitted the office. Therefore, the PJ was fully competent to record the remarks, if any, for the period from April 1, 2007 to March 31, 2008 even after demitting the office.

Learned Advocate General would submit that a Constitution Bench of the Supreme Court in Prakash Chand Sharma v. The Oil and Natural Gas Commission and Others (1970) SLR 116, had held that communication of adverse remarks is not necessary and if the same is on the record, the same may be considered by the DPC while considering the candidate along with other persons for promotion to the higher post or for any other benefits.

Shri Murthy, learned Dy. Adv. General appearing with Shri Arun Sao, learned Govt. Advocate for the State, adopts the arguments advanced by the learned Advocate General appearing on behalf of the respondent No. 1.

Shri Rajeev Shrivastava, learned counsel appearing with Shri Malay Shrivastava, learned Advocate for the respondent No. 6 and Shri Abhishek Sinha, learned counsel appearing with Shri Ghanshyam Patel & Shri D.L. Dewangan, learned Advocates for the respondent No. 11, would submit that the petitioner cannot seek quashing of the decision wherein the respondents No. 6 & 11 have been found fit for grant of STS. Even the ACRs of the said respondents cannot be quashed on the prayer made by the petitioner. In fact, in WP (S) No. 3948 of 2010 the petitioner has not impleaded the respondents No. 6 & 11 and others as necessary party/respondents.

Shri Singh, learned counsel appearing for the respondent No. 4 adopts the arguments advanced by the learned counsel appearing for other respondents.

In WP (S) No. 2028 of 2009, the petitioner has sought expunction of the adverse remarks made by the respondent No. 2 for the period from April 1, 2005 to March 31, 2006.

In WP (S) No. 2025 of 2009, the petitioner has sought expunction of the adverse remarks relating to the period from April 1, 2004 to October 31, 2008 (sic October 31, 2004).

For grant of STS w.e.f. March 30, 2005 the petitioner has filed one more petition, being WP (S) No. 3948 of 2010.

W.P. (S) No. 2025 of 2009: On perusal of the record, it was found that the RG by D.O. letter dated June 28, 2006 communicated the adverse remarks recorded in his ACR for the period from April 1, 2004 to October 30, 2004, to the petitioner.

The petitioner made a representation to the communication, ibid, on September 7, 2006. The same was considered and rejected by a Committee of Judges in its meeting held on July 25, 2008. The petitioner also made second representation on June 27, 2008. The petitioner was informed vide letter dated September 18, 2008 that his representation dated June 27, 2008 was considered and rejected and it was also advised not to make repeated representations for the same period.

On perusal, it is found that the Full Court of the High Court in its meeting held on September 11, 2008 rejected the representation dated June 27, 2008 for expunging the adverse remarks recorded for the period from April 1, 2004 to October 31, 2004.

Once the representation was duly considered, unless a material, with strong reasons, is produced, and a strong case is made out, the same cannot be disbelieved lightly, except in those cases, where conclusion or decision is arbitrary, capricious and shocks the conscientious of a reasonable person. (See: Smt. Shraddha Akash Shrivastava Vs. State of C.G. and Another, ).

W.P. (S) No. 2028 of 2009 : So far as the adverse remarks recorded by the, then, District Judge, Dantewada/respondent No. 2 in the ACR of the petitioner for the period from April 1, 2005 to March 31, 2006 is concerned, the PJ agreed with the reporting officer, however, having regard to the disposal, upgraded the grade of the petitioner from ''D'' to ''C''. The adverse remarks were communicated to the petitioner on December 31, 2007. There against, a representation was made by the petitioner on January 6, 2008, which was duly considered by a Committee of Judges in its meeting held on January 17, 2008 and was rejected. The said decision was communicated to the petitioner on January 28, 2008. Thereafter, the petitioner made several representations on February 20, 2008, March 19, 2008 & June 23, 2008. The said representations were also duly considered again by the Full Court in its meeting held on September 11, 2008 and the same were rejected. It was also advised not to make repeated representations for the same period.

The petitioner has collected several information under the provisions of the RTI Act, which are not relevant in the controversy involved in this case, as this Court is loath to interfere in the facts of the case when the representations made by the petitioner indicating all the informations collected by him, have been fully considered by the Full Court. Nothing extraordinary or unreasonable has been pointed out by the petitioner to take a contrary view from the decision taken by the Full Court of the High Court.

W.P. (S) Nos. 1989 of 2009 & 3948 of 2010 : These petitions have been filed by the petitioner for grant of STS w.e.f. March 30, 2005. In WP (S) No. 1989 of 2009 the petitioner also prayed for other reliefs, as stated in para 2(a) of this order.

As regards adverse remarks for the period from April 1, 2007 to January 31, 2008, which is the main plank of the entire argument, the petitioner, serving as IInd Additional Principal Judge, Family Court, Durg, reported himself against column No. 3 as under:

In every cases efforts were made to persuade the parties to arrive at a settlement. Some cases may be cited as satisfying examples of my personal efforts viz.... (1) An Engineer husband had filed a suit (503-A/05) for divorce against his wife. They had two minor children. On persuasion husband agreed to live with his wife and case ended in a compromise. (2) An old mother (87 years) filed an application (MJC 05/08) for maintenance u/s 125 of Cr.P.C. against her two sons. On persuasion, sons agreed to pay 4,000/- pm. (2,000/-, 2,000/- each) on the first day of hearing on 5.1.2008. The old mother was completely satisfied.

The, then, PJ, made observation on September 3, 2008, in the capacity of reporting authority, after demitting the office on July 24, 2008. The representations submitted by the petitioner on January 2, 2009 (Annexure P-3), January 15, 2009 (Annexure P-4) and February 25, 2009 (Annexure P-5) were considered, rejected and was communicated to the petitioner on April 8, 2009.

On perusal of the papers, it is found that the files were sent to the PJ after approval obtained on September 2, 2008 i.e. after completion of one month of demitting the office by the PJ for recording remarks in the ACR of the Judicial Officers for the year 2007-08.

It is well settled proposition of law that if a particular service rules do not deal with a particular action to be taken by the officers in recording of remarks in the ACR, an inference can be drawn from other service rules. In the case on hand, Rule 12(4) of the HJS Rules provides that other rules relating to conditions of service of Government servant of the corresponding grade in general not inconsistent with these rules shall be applicable to the Members of the HJS. There was no provision as to how and when remarks be made in the ACR in the HJS Rules. Accordingly, All India rules of corresponding grade may be made applicable.

Sub-rules (5) (6) & (7) of Rule 5 of the All India Rules read as under:

5(5) Where the authority writing the confidential report under sub-rule (2) or sub-rule (4) of this rule retires from service, the confidential report shall be written not later than one month of the date of such retirement.

5(6) Where the reporting authority, the reviewing authority and the accepting authority have not seen the performance of a member of the Service for at least three months during the period for which the report is to be written, an entry to that effect shall be made in the confidential report for any such period by the Government.

5(7) Notwithstanding anything contained in sub-rules (1), (2) and (4), it shall not be competent for the reporting authority, the reviewing authority or the accepting authority, as the case may be, where the authority writing the confidential report is not a government servant, to write a confidential report after he demits office.

Explanation:--For the purpose of this rule, Minister shall not be treated as having demitted office if he continues to be a Minister in the Council of Ministers with a different portfolio or in the Council of Ministers immediately reconstituted after the previous Council of Ministers of which he was a Minister with the same or a different portfolio.

On perusal of Rule 5(5) of the All India Rules, it is crystal clear that the authority competent to write the ACR under sub-rule (2) or sub-rule (4) may write the ACR, if before writing of the ACR he was in seisin of the file, within a period of one month from the date of such retirement. One month period cannot be extended even by one day.

In the case on hand, the PJ (retired) was not in seisin of the file before demitting the office or within one month from the date of retirement, as the file was handed over to him, pursuant to the approval dated September 2, 2008 beyond the period of one month. Thus, recording remarks in the ACR after a period of one month is, unreasonable.

The contention of the learned Advocate General that as the accepting authority has delegated power to the, then, PJ, who had demitted his office to record his remarks in the ACR of the petitioner, as he was competent to write the remarks, cannot be countenanced. The accepting authority cannot delegate power of reporting/reviewing authority to an Ex-Judge, who had already demitted the office to act as reporting/reviewing authority in respect of recording the remarks in the ACR of a Judicial Officer. Likewise, a Judge cannot deliver the judgment after demitting the office, as he becomes functus officio.

The Full Court in its meeting held on March 25, 2009 found unfit as many as 8 officers including the petitioner for grant of STS. The fact, thus, remains that the representations dated January 2, 2009, January 15, 2009 & February 25, 2009 made by the petitioner against the adverse remarks for the period from April 1, 2007 to January 31, 2008 were considered and rejected by a Committee of Judge in its meeting held on March 17, 2009 i.e. much before the decision was taken by the Full Court in respect of grant of STS to the senior Judicial Officers.

An adverse remark in the ACR for the period from April 1, 2007 to January 31, 2008 was no remark, as it was made by the concerned Judge, after demitting the office. Rule 5(5) of the All India Rules strictly prohibits writing of ACR after expiry of one month from the date of demitting the office. The decision holding him ''unfit'' was communicated to the petitioner on March 31, 2009. There against, he preferred representations on March 3, 2010, March 5, 2010 & April 25, 2010, which were rejected by the Full Court on July 7, 2010 and the said decision was communicated to the petitioner on July 9, 2010. The communication dated July 9 2010, is under challenge in WP (S) No. 3948 of 2010.

The submission of learned counsel appearing for the private respondents that the petitioner has not challenged the decision, but the order passed on his representation, thus the decision taken on March 25, 2009 cannot be questioned in WP (S) No. 3948 of 2010. It is further contended that the private respondents have not been impleaded as party/respondents also in WP (S) No. 3948 of 2010.

The aforesaid contentions of the private respondents are fallacious. The petitioner had challenged the decision taken on March 25, 2009 in WP (S) No. 1989 of 2009 wherein all the private respondents have been impleaded as party/respondents. In WP (S) No. 1989 of 2009, where the petitioner challenged recording of remarks for the period ending on January 31, 2008 and also decision taken on March 25, 2009 by the Full Court, in respect of grant of STS grade, based on remarks and grading for the period ending on January 31, 2008. All the writ petitions are considered and decided by this common order.

Thus, this is an extraordinary situation where the Court is constrained to interfere with the decision of the Full Court, as it shocks conscientious of a reasonable person, as injustice is apparent.

It is further well settled principle of law that it would be difficult to subject a decision taken by the Full Court to judicial review, however, in an extraordinary case when the Court is convinced that some injustice, which ought not to have taken place, has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court. It is also well settled ratio that judicial review is permissible when the conclusion/decision, on the very face of it, is wholly arbitrary or capricious. (See: Rajendra Singh Verma (Dead) through L.Rs Vs. Lt. Governor of NCT of Delhi and Another, and High Court of Judicature at The High Court of Judicature at Bombay, Through Its Registrar Vs. Shashikant S.Patil and Another, ).

There is no quarrel on the issue that non-communicated adverse entry, which effects the service career of an employee, shall not be taken into consideration, while considering the case either for grant of higher pay scale or for higher promotion. {See: Dev Dutt (supra)}. However, in case of compulsory retirement all the remarks whether communicated or un-communicated have to be considered to assess over all performance of an employee during his service period.

The decisions of the Supreme Court rendered in Syed T.A. Naqshbandi and Others Vs. State of Jammu and Kashmir and Others, and Sheikh Abdul Rashid and Others Vs. State of Jammu & Kashmir and Others, are not applicable to the facts of the present case.

In respect of recording of ACRs of the Judicial Officers, it is profitable to refer the following sagacious observation made by the Supreme Court in Registrar General, Patna High Court Vs. Pandey Gajendra Prasad and Others, :

However, before parting with the judgment, we deem it necessary to make a mention about the recording of the ACRs of judicial officers. We feel that the present system of recording the ACRs leaves much to be desired and needs to be revamped. Experience has shown that it is deficient in several ways, being not comprehensive enough to truly reflect the level of work, conduct and performance of each individual on the one hand and unable to check subjectivity on the other. This undoubtedly breeds discontent in a section of the judicial service besides eroding proper and effective superintendence and control of the High Court over subordinate judiciary.

The process of evaluation of a judicial officer is intended to contain a balanced information about his performance during the entire evaluation period, but it has been noticed that many a times, the ACRs are recorded casually in a hurry after a long lapse of time (in some cases even after the expiry of one year from the period to which it relates), indicating only the grading in the final column. It needs no elaboration that such hurried assessment cannot but, be either on the basis of the assessment/grading of the preceding year(s) or on personal subjective views of the Inspecting Judge(s), which is unfair to the judicial officer.

Undoubtedly, ACRs play a vital and significant role in the assessment, evaluation and formulation of opinion on the profile of a judicial officer, particularly, in matters relating to disciplinary action against a judicial officer. The ACRs of such officer hold supreme importance in ascertaining his conduct, and therefore, the same have to be reported carefully with due diligence and caution. We feel that there is an urgent need for reforms on this subject, not only to bring about uniformity but also to infuse objectivity and standardisation.

Reliance of the learned Advocate General on the decision of the Supreme Court in Prakash Chand Sharma (supra) is of no assistance to him, as the facts involved therein are different.

Further reliance of the learned Advocate General upon the decisions of the Supreme Court in Satya Narain Shukla Vs. Union of India (UOI) and Others, , K.M. Mishra Vs. Central Bank of India, and U.P. State Mineral Development Corpn. and Another Vs. K.C.P. Sinha, , are not relevant to the facts of the present case.

For the reasons mentioned hereinabove, it is ordered that: WP (S) Nos. 1989 of 2009 & 3948 of 2010:

� The adverse remarks and grading, thereon, recorded in the ACR for the period from April 1, 2007 to January 31, 2008, being non est, are quashed.

� The decision taken by the Full Court in its meeting held on March 25, 2009, to the extent of holding the petitioner as unfit to grant the benefit of STS grade, is quashed.

� The memo dated July 9, 2010, rejecting the representation of the petitioner for grant of STS grade, is quashed.

� The respondent No. 1/High Court of Chhattisgarh shall reconsider the case of the petitioner for grant of STS grade, as on March 25, 2009, in view of the aforestated order.

� The petitioner shall be entitled to appropriate relief, thereon.

� As a sequel, both these petitions are allowed to the extent indicated hereinabove.

WP (S) No. 2028 of 2009 & 2025 of 2009:

� These petitions, sans substratum, are liable to be and are hereby dismissed.

There shall be no order as to costs.